Department of Homeland In-Security? Will President Trump’s EO Inhibit Prosecution of International Human Trafficking?

By Benjamin Thomas Greer

“Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws.” [1]

On January 25, 2017, President Donald Trump signed the Executive Order: Enhancing Public Safety in the Interior of the United States. [2] In this Order, the President directed his administration to enforce the nation’s immigration laws more aggressively, arresting and deporting those in the country illegally, regardless of whether they have committed serious crimes or not. This is in stark contrast to the previous Obama administration where arrests and deportation proceedings were largely based on the severity of an individual’s criminal history. Since the signing of this Executive Order, numerous reports across the west and southwest have documented United States Immigration and Customs Enforcement’s (ICE) new aggressive approach to enforcement. Incidents in California, Arizona, Texas and Colorado have seen teams of ICE agents trolling courthouse hallways and parking lots looking for individuals subject to deportation. [3] In February of this year, there were reports ICE agents detained an undocumented woman just after she went to an El Paso, Texas county courthouse to seek a protective order against an allegedly abusive boyfriend. [4]

This past month, in a letter to Attorney General Sessions, California’s Chief Justice Tani G. Cantil-Sakauye criticized the practice of immigration officers entering courthouses and waiting on courthouse steps to make arrests. Chief Justice Cantil-Sakauye’s letter was in direct response to several reports from lower court judges, private attorneys, and Legal Aide lawyers relaying the alarming practice of ICE agents arresting people after court proceedings. [5] “Our courts are the main point of contact for millions of the most vulnerable Californians in times of anxiety, stress, and crises in their lives.” [6] Chief Justice Cantil-Sakauye closed her letter by stressing these practices not only compromise “our core value of fairness but they undermine the judiciary’s ability to provide equal access to justice. I respectfully request that you refrain from this sort of enforcement in California’s courthouses.” [7]

“Victims of crime…come to our courts seeking justice and due process of law.” [8]

These enforcement practices are likely to undermine the fundamental pillar of trust local law enforcement and prosecutors need to successfully prosecute crime in our communities. Cases that heavily rely upon witness testimony and cooperation from individuals without immigration status will suffer greatly.

This EO Will Make International Human Trafficking Cases More Difficult to Prosecute

The largest concentrations of trafficked victims within the United States have been located in California, Oklahoma, Texas and New York. [9] According to the National Human Trafficking Resource Center Report, California routinely tops the lists of states with the most “potential trafficking locations” and as the state with the most potential victim “caller locations.” [10]

Nonimmigrant T-Visa Protections

In 2000, Congress passed the Trafficking Victims Protection Act, which among other things, created the T-Visa. [11] Congress understood the inequity of deporting trafficking victims; doing so places them in an untenable position by preventing them from seeking law enforcement aid and reporting crime, retarding the discovery and prosecution of human trafficking. [12] Designed to provide immigration safeguards for victims of trafficking, the T-Visa [13] provides an avenue for undocumented victims to remain in the United States [14] with the understanding that their presence was a result of their victimization; thus deportation of victims and witnesses would severely hinder law enforcement’s ability to prosecute trafficking. [15] If a victim or witness was present in the U.S. without proper documentation and was actively seeking a T-Visa, their immigration status is a subject likely to be revealed in open court and potentially subjecting that individual to a DHS enforcement action or removal. California Evidence Code section 780(f) [16] generally permits counsel to purse any line of questioning illuminating the existence or nonexistence of a bias, interest, or other motive. A victim or witness would surely be reluctant to engage the legal system out of fear of immigration officers who are waiting for them in the courtroom gallery or courthouse hallway.

Courthouses Should Be Added To ICE’s Sensitive Location Policy For Victims of
Crime and Necessary Witnesses

The Department of Homeland Security (DHS) has created and maintained a policy that advises United States Immigration and Customs Enforcement (ICE) and the United States Customs Border Patrol (CBP) against enforcement actions in “sensitive locations.” DHS defines these locations to include:
• Schools [17] including licensed daycares; pre-schools and other early learning programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities;
• Medical treatment and health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities;
• Places of worship, such as churches, synagogues, mosques, and temples;
• Religious or civil ceremonies or observances, such as funerals and weddings; and
• During public demonstration, such as a marches, rallies, or parades. [18]

DHS states, “The policies are meant to ensure that ICE and CBP officers and agents exercise sound judgment when enforcing federal law at or focused on sensitive locations, to enhance the public understanding and trust, and to ensure that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so, without fear or hesitation.” [19] Courthouses are not included on this list and are expressly addressed as unprotected areas on the DHS’s Enforcement and Removal Operations FAQ page. [20] In line with this policy and its prime directives of “public understanding and trust,” with regards to victims of crimes and witnesses, DHS should strongly consider adding courthouses and courthouse grounds to this list of protected sensitive locations.

Conclusion

Under the Trump administration, aggressive border enforcement actions are likely to continue and increase in frequency and intensity. DHS should approach any enforcement or removal action with a nuanced understanding of the potential adverse effects an action could, or is likely, to cause to the administration of justice. The decision to take an enforcement or removal action should not be binary. The enforcing agency should examine all available facts before deciding whether and how to act. This will necessitate clear and robust communication between federal, state and local authorities. Applying a myopic view of immigration law will be detrimental to the overall safety of all citizens no matter what their immigration status.


About the author
Benjamin_GreerBenjamin Thomas Greer is a Fmr. Special Deputy Attorney General (Special DAG), California Department of Justice – Office of the Attorney General. As a specializing Deputy Attorney General he was a lead member of the California Attorney General’s Human Trafficking Special Projects Team and Co-Chaired the Attorney General’s Human Trafficking Statewide Working Group, tasked with a comprehensive update of the statewide trafficking report. He has published extensively on human trafficking, presenting his work around the world in over 8 countries. In 2015 Mr. Greer teamed up with other experts to form the Human Trafficking Investigations & Training Institute.


Notes: 

[1] Letter from Tani G. Cantil-Sakauye, California Chief Justice to Jefferson Sessions, United States Attorney General (March 16, 2017) (Available at http://newsroom.courts.ca.gov/news/chief-justice-cantil-sakauye-objects-to-immigration-enforcement-tactics-at-california-courthouses).
[2] Exec. Order dated January 25, 2017, Enhancing Public Safety in the Interior of the United States. (Available at https://www.whitehouse.gov/thepress-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united) (Accessed March 30, 2017).
[3] James Queally. ICE agents make arrests at courthouses, sparking backlash from attorneys and state supreme court. Available at http://www.latimes.com/local/lanow/la-me-ln-ice-courthouse-arrests-20170315-story.html. Accessed March 30, 2017.
[4] Richard Gonzales. ICE Detains Alleged Victim Of Domestic Abuse At Texas Courthouse. Available at http://www.npr.org/sections/thetwoway/2017/02/16/515685385/ice-detains-a-victim-of-domestic-abuse-at-texas-courthouse. Accessed March 30, 2017. 5 Angela Hart. Quit stalking immigrants at California courthouses, chief justice tells ICE. Available at http://www.sacbee.com/news/politicsgovernment/capitol-alert/article138935588.html. Accessed March 30, 2017. 6 Letter from Tani G. Cantil-Sakauye, California Chief Justice to Jefferson Sessions, United States Attorney General (March 16, 2017) (Available at http://newsroom.courts.ca.gov/news/chief-justice-cantil-sakauye-objects-to-immigration-enforcement-tactics-at-california-courthouses).
[7] Id.
[8] Id.
[9] U.S. Dep’t of Justice, Report to Congress from Attorney General John Ashcroft on U.S. Government Efforts to Combat Trafficking in Persons in Fiscal Year 2003 (2004) (Available at http://www.justice.gov/archive/ag/annualreports/tr2003/050104agreporttocongresstvprav10.pdf) (Accessed March 30, 2017).
[10] Increasing Awareness and Engagement: Strengthening the National Response to Human Trafficking in the U.S. Annual Report 2011, p. 15, National Human Trafficking Resource Center (NHTRC). Available at http://www.polarisproject.org/resources/hotline-statistics. Accessed March 30, 2017.
[11] Trafficking Victims Protection Act of 2000, 22 U.S.C. § 7101 (2000).
[12] Dr. Ranee Khooshi Lal Panjabi, Born Free Yet Everywhere in Chains: Global Slavery in the Twenty-First Century, 37 Denver J. Int’l L. & Pol’y 1, 14 (2009) at 18, [stating, there is also the ancillary problem whereby freed slaves can themselves face prosecution, with as illegal immigrants or as criminals where they have been forced to work as prostitutes. Often the victims have no identification papers as their exploiters all too often take their documents away. These legal anomalies whereby victims are criminalized by the law are being redressed in some countries.].
[13] United States Citizenship and Immigration Services. Victims of Human Trafficking: T Nonimmigrant Status. Available at https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-human-trafficking-t-nonimmigrant-status. Accessed March 30, 2017. [stating, You may be eligible for a T visa if you:
• Are or were a victim of trafficking, as defined by law;
• Are in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry due to trafficking;
• Comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking (or you are under the age of 18, or you are unable to cooperate due to physical or psychological trauma);
• Demonstrate that you would suffer extreme hardship involving unusual and severe harm if you were removed from the United States; and
• Are admissible to the United States. If not admissible, you may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant].
[14] Violence Against Women Office, U.S. Dep’t of Justice, Human Trafficking and the T-Visa. Available at http:// vaw.umn.edu/documents/humantrafficking/humantrafficking.pdf. Accessed March 30, 2017 [stating, the T-Visa enables a victim of severe forms of trafficking to receive services, work legally in the United States, and potentially earn permanent residency if the victim cooperates with the criminal justice system.].
[15] See 22 U.S.C. § 7105(b)(1)(E)(iii) (2017) (declaring statement made to law enforcement and a willingness to “assist in every reasonable way with the respect to the investigation and prosecution” of local crimes associated with trafficking offenses as meeting the requirement of cooperation for a T-Visa).
[16] Cal. Evid. Code §780 (2017) states: Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:
(a) His demeanor while testifying and the manner in which he testifies.
(b) The character of his testimony.
(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.
(d) The extent of his opportunity to perceive any matter about which he testifies.
(e) His character for honesty or veracity or their opposites.
(f) The existence or nonexistence of a bias, interest, or other motive.
(g) A statement previously made by him that is consistent with his testimony at the hearing.
(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.
(i) The existence or nonexistence of any fact testified to by him.
(j) His attitude toward the action in which he testifies or toward the giving of testimony.
(k) His admission of untruthfulness.
[17] “Schools” also include scholastic or education-related activities or events and school bus stops that are marked during periods when school children are present at the designated stop.
[18] U.S. Immigration and Customs Enforcement. Sensitive Locations FAQs. Available at https://www.ice.gov/ero/enforcement/sensitive-loc. Accessed March 30, 2017. 19 Id. 20 Id.


[Source: The Refuge (May 2017), Volume 1, Issue 3, pages 2-5]

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