Secretary of State Rex Tillerson in June posed a crucial question: “How do we create the conditions where the victims or the potential victims of human trafficking are able to come forward?” Paola* has a hard-won answer: Stop giving traffickers all the power, including the power to use immigration enforcement against victims.
Paola is living out a Kafkaesque scenario. She came to the U.S. with a legal work visa but suffered exploitation and trafficking. She escaped, reported and cooperated with a law enforcement investigation. And she has spent more than four months and counting in detention.
Paola was brought to Florida from Colombia by a family that employed her to work as a nanny. They secured a B-1 visa under a special U.S. visa program, the B-1 visa for a Business Visitor as a Personal or Domestic Servant. Many foreign nationals, as well as U.S. citizens who live abroad permanently, are able to bring nannies or housekeepers with them when they move to live temporarily in the U.S. When applying, applicants must show the U.S. State Department an employment contract that promises reasonable hours, fair wages and compliance with U.S. laws.
If employers violate the law, workers have little practical access to assistance. A 2015 report on labor trafficking by the Polaris Project showed that roughly 40 percent of the incidents of labor trafficking reported to national trafficking helplines are linked to temporary visa programs. Household workers are particularly vulnerable because of their isolation, poverty and unfamiliarity with U.S. legal protections. Additionally, a worker loses her legal status if she leaves the employer’s household. There is no “grace period” or easy access to protection even for those fleeing abuse. Employers thus can effectively use threats to control workers. Paola’s traffickers, following a typical pattern, told her that she could be arrested if she tried to complain or leave.
When a visa program creates such unequal power, worker-led monitoring of conditions is called for—but information and access for community groups is not required under current rules. No one can say how exactly many B-1 domestic workers are in the country or where they are. No federal agency makes a list of employers or employees available to advocates in this country. B-1 domestic workers are not guaranteed contact information and time off to meet with community organizations, a requirement that should be in the regulations that govern the program and should be a mandatory part of employment contracts. Thus, workers have no independent information or support.
The United Nations’ Special Rapporteur on Trafficking in Persons, Especially Women and Children, raised concerns in a June 2017 report that “temporary, non-immigrant visas tying migrants to single employers create vulnerabilities to human trafficking.” Many employers are able to hire and abuse a series of B-1 domestic workers, simply returning to the home country for another if one begins to challenge the exploitative conditions. The door to trafficking is open—shaped by worker vulnerability and employer impunity.
For almost two years, Paola worked long and exhausting hours caring for a child, cooking and cleaning. She slept on a cot or on the floor in the living room. She suffered wage theft, emotional abuse, intimidation, threats of legal reprisals, denial of health care and other workplace abuses. Paola reported that her traffickers told her that “should not talk with other people because they could tell me things that were not right and could get me in trouble.” They warned that their powerful relatives in Colombia would be angry if she left their household. Paola worried about the consequences for her small children, still living in the same region in Colombia.
But resistance is hard to extinguish. In November 2016, Paola saw an interview with two former B-1 domestic workers, individuals who escaped similar situations and sought justice. This gave Paola inspiration and—importantly—a local group, Miami Workers Center (MWC), to contact. Worker-to-worker connection is vital, not just at the first step of emerging from abuse but even more in the long, difficult path to seeking justice.
Soon after learning that other workers had organized and could help her, Paola left her employers and contacted MWC. MWC is part of the National Domestic Worker Alliance, a network of groups throughout the country that organize household workers and collaborate in the Beyond Survival anti-trafficking initiative. Through this initiative, survivors lead community responses and advocate for better public policies. MWC, in turn, referred Paola to our strategic law and policy ally, Advocacy Partners Team. With additional assistance from pro bono attorney Mark Prada, we have helped Paola confront her abuse.
Many women of color are lured to this country to do household work with promises of fair jobs and legal status; our immigration system is failing Paola and others like her. The temporary visa program rules make workers vulnerable to abuses, the lack of access to community groups and worker-led monitoring essentially grants impunity to abusers and the Trump Administration does not make protecting victims a clear priority. Taken together, it’s the “perfect storm” for intense abuse.
Paola reported her experiences to the U.S. Department of Labor (DOL) within a few days after leaving the traffickers’ household in 2016. A months-long DOL investigation was opened in 2017. Paola has cooperated fully, participating in multiple interviews. In August, she received a DOL letter certifying that she is a victim of a severe form of human trafficking. Paola thought that if she cooperated with investigators, she would be protected; instead, immigration officials have consistently ignored pro-victim policies and even facilitated the traffickers’ retaliation.
Pro-victim policies aim to encourage immigrants to report problems and to seek redress for injustices. Although Trump Administration officials repeatedly have claimed that encouraging victims’ cooperation is important, the strength of the Administration’s commitment to existing pro-victim policies is questionable. A 2011 Immigration and Customs Enforcement (ICE) memorandum directs ICE officials to use their discretion to avoid arresting, initiating removal proceedings against, or deporting victims who are trying to protect their civil rights. In February 2017, the Trump Administration set out priorities for deportation that broaden the pool of deportable individuals and do not clearly address victim protection.
In practice, this has meant that Paola’s cooperation with a federal labor agency’s investigation as a victim and witness to human trafficking did not stop her from being arrested, detained and repeatedly refused bond by federal immigration officials.
In June, Paola was riding in a car that was stopped at the entrance to a port, and the driver turned out to be undocumented. She and others were asked for identification. Paola then encountered a series of immigration officials, each of whom could have chosen to make a pro-victim exercise of discretion, but did not. Customs officials arrested Paola despite seeing proof of the DOL investigation. She was put into immigration detention. ICE officials initiated removal proceedings and then refused to agree to bond. Subsequently, immigration judges decided that Paola was a “flight risk” and denied repeated requests for bond.
The basis for deciding that Paola was a “flight risk” was a false accusation of theft that the traffickers had made after Paola fled their household. False accusations are a common sort of retaliation. According to a report by the New Orleans Workers’ Center for Racial Justice, justice often is undermined when “the state cooperates with private actors who use immigration enforcement to hide their own unlawful behavior” by trying to “deport the evidence” of abuses. In this case, the DOL certification letter states that Paola was “frightened by the fact that her employers have filed a false report of theft against her to get her in trouble in this country.”
Paola has lived in a bureaucratic standoff for months. Immigration judges have required that Paola resolve the police complaint before she can be released, but police detectives refused to interview her in detention. Recently, the Miami-Dade County State Attorneys Office’s Human Trafficking Unit stepped in to help. Nevertheless, Paola remains in detention, waiting for the judge to rule, unable to support her children and subject to the relentless stresses of incarceration. In this environment, she is tempted to give up and agree to “self deportation.” Paola’s deportation would deliver the win to the traffickers—a win facilitated at every step by immigration officials. But Paola has persisted—for herself and for others who, lacking community connections, might disappear into the deportation pipeline.
Paola can answer Secretary Tillerson’s question. We can create the conditions that allow victims of crime to safely step forward by changing the rules to redistribute power. We can allow workers to maintain legal status after leaving employer households, instead of tying status to one employer. We can make access to community organizations in this country mandatory, instead of leaving workers at the mercy of governmental actors alone. We can prioritize victim protections in immigration enforcement, instead of facilitating employer attempts to “deport the evidence” of abuses.
We can shift power so that “victims” can do even more than become “survivors”—they can be leaders on a path to greater justice.
*The survivor’s name has been changed to protect confidentiality.