U.S. Immigration Policy and Human Trafficking: Two Sides of the Same Coin

Introduction 

by Hailey York

It is no secret border security has grown stricter at the United States-Mexico border recently. The U.S. has roughly 700 miles of fencing along the border, record levels of immigration and customs staff, and exponential growth in immigration spend.¹ Current immigration policies have been touted by supporters as beneficial, including through their prevention of human trafficking. However, key immigration policies such as increased border security and the Migrant Protection Protocols (MPP) have had the opposite effect–making traffickers' jobs easier.

Human trafficking, the “crime of using force, fraud, or coercion to compel an individual to work or to engage in a commercial sex act,”² is the world's second-largest criminal industry, generating an estimated $150 billion annually.³ The U.S. Department of State estimates between 14,500 and 17,500 victims are trafficked within the United States each year.⁴ An estimated 72% of these victims are immigrants.⁵ Immigrants are often drawn to the U.S. with the promise of a good job and the opportunity to send money to family back home and can be particularly vulnerable to trafficking. Among the federal human trafficking cases filed in 2021, adult victim vulnerabilities identified included undocumented immigration status (49%), limited English proficiency (47%), and financial debt (70%).⁶ Even with a strong link between immigration and human trafficking, the two issues are often compartmentalized to allow bi-partisan human trafficking legislation to pass without being burdened by hotly contested immigration policy. However, this practice greatly hinders anti-trafficking efforts by divorcing two closely interrelated issues.

Increased Border Security 

While increased border security may combat human trafficking in some cases, experience has shown increasing border personnel has not deterred trafficking. Rather, border personnel has used increased resources to initiate more prosecutions of first-time illegal entrants, diverting resources away from trafficking in favor of securing thousands of easy plea convictions⁷. Additionally, some victims have legitimate visas allowing them entry while others have facially valid but fraudulent visas obtained by their traffickers, allowing them to slip through the cracks.

Instead of combating human trafficking, tightened border security makes crossings more dangerous and costly, encouraging many immigrants to turn to smuggling and debt. Human smuggling is the “procurement, for financial or other material benefits, of illegal entry of a person into a state of which that person is not a national or resident.”⁸ Unlike human trafficking, smuggling involves migrants' consent. However, smuggling creates situations ripe for human trafficking by driving up the costs of transborder movement, “leaving the poor with no choice but to mortgage their futures to pay for safe passage.”⁹

Once trafficked, undocumented migrants often fear reporting abuses to U.S. law enforcement, with 7% of forced labor victims citing threats of deportation as a primary form of coercion used to keep them in bondage.¹⁰ This fear of deportation is not ill-founded. Historically, law enforcement officials have had difficulty distinguishing between undocumented migrants and human trafficking victims, a crucial distinction. Under the law, undocumented migrants may be arrested for violations of U.S. immigration law, placed in deportation proceedings, and prosecuted for crimes they were forced to commit while being trafficked. On the other hand, human trafficking victims are entitled to assistance from state and local authorities, a safe harbor from prosecution, and may apply for the right to remain in the United States.¹¹ Given most migrants are unaware of their rights as human trafficking victims and lack a right to counsel to inform them of their rights, a history of law enforcement treating human trafficking victims as undocumented migrants have left many migrants in fear of reporting abuses.

This fear has likely only increased in recent years. The U.S. political climate, coupled with the effects of Covid-19, spurred many officers towards deportation for public health and safety under Title 42 and MPP. Where migrants in the past were allowed into the United States to make their asylum claims, since 2020, 61% of encounters between law enforcement and migrants have ended in deportations instead.¹² The combination of higher rates of deportation, migrants unaware of their rights, and law enforcement unable to tell human trafficking victims from migrants who have not been exploited often results in the wrongful deportation of many trafficking victims, who have a higher likelihood of becoming re-victimized upon repatriation.

MPP and Title 42 

In 2019 President Trump introduced the MPP, otherwise known as Remain in Mexico. From the program's introduction in January 2019 through December 2020, 70,000 people were returned to Mexico to await asylum court hearings.¹³ Additionally, in 2020 President Trump's administration began expelling migrants under Title 42, a little-known provision of U.S. health law allowing migrants to be expelled to remain in Mexico, or to their home countries.¹⁴

Upon taking office in January 2021, President Biden suspended the MPP program, before officially canceling it in June 2021. As a result, Missouri and Texas have sued to reinstate the program, winning in the lower courts before the Supreme Court sided with the current administration, allowing for the termination of the program. However, the case was remanded to the lower courts, allowing Texas and Missouri to try other legal routes to keep the MPP in place. In April 2022, Biden also attempted to suspend the use of Title 42 only to be blocked by a Louisiana court order requiring its continued use. As a result, migrants are still being expelled from the United States or made to Remain in Mexico.¹⁵

The MPP and Title 42 have been hailed as limiting human trafficking by decreasing traffic through the U.S. immigration system, and thus the ability of traffickers and smugglers to prey on vulnerable populations. However, in practice, the MPP and Title 42 have had the opposite effect. Asylum seekers returned to Mexico are at a heightened risk for kidnapping, trafficking, and rape. From the start of MPP in January 2019 through February 2021 there were at least 10,250 publicly reported cases of migrants being targeted with violence.¹⁶ Even migrants who have reported being trafficked while waiting in Mexico at their asylum hearings in the United States have been forced to return and have been revictimized in the process.¹⁷

Additionally, migrants forced to remain in Mexico to await their asylum hearings have a more challenging time locating counsel familiar with U.S. asylum law, decreasing their chances of winning their claims. Migrants waiting within the United States for asylum hearings can find representation 80% of the time, while migrants waiting in Mexico were only able to find representation 7.6% of the time.¹⁸ The MPP and Title 42 have limited access to, and success within, the legal routes to immigration. When legal routes are limited, more migrants turn to smuggling and face increased vulnerability to trafficking.

Recommendations 

In the absence of a larger overhaul of the U.S. immigration system, there are several steps policymakers can take to limit the human trafficking of immigrants.

First, lawmakers should acknowledge the problem of artificially separating immigration and human trafficking. While compartmentalization allows for bipartisan support, “it has the disastrous disadvantage of offering virtually no protection to the trafficking victims who fall through the crack.”¹⁹ Congress should view immigration policy through a human trafficking lens and investigate how immigration policy impacts human trafficking victims.

Second, immigrants should be armed with information on their rights. Workers who know their rights are more likely to report, identify themselves as human trafficking victims, and assist in the prosecution of human trafficking perpetrators.²⁰ More information should be posted in public spaces on migrant workers' rights as victims of human trafficking and employers should be required to provide pamphlets in a language understood by the worker on their rights.

Third, migrants should have a right to counsel at immigration proceedings. Legal counsel not only ensures immigrants receive meaningful hearings and those human trafficking victims are identified but makes immigration court proceedings more efficient as well, reducing the U.S. backlog of cases.²¹

Finally, the Biden administration should repeal the MPP and Title 42. Not only has the CDC supported repealing Title 42, citing little continued benefit to public health,²² but expelling migrants back to their home countries where they faced persecution or forcing them to wait in Mexico increases trafficking and other violent crimes. For a country staunchly opposed to human trafficking, the United States needs to take a closer look at how its immigration policies are aiding and abetting human trafficking.

¹ The Cost of Immigration Enforcement and Border Security. American Immigration Council. (2021, April 20). Retrieved from https://www.americanimmigrationcouncil.org/research/the-cost-of-immigration-enforcement-and-border-security

² Lane, L., Gray, A., & Rodolph, A. (2022, June). 2021 Federal Human Trafficking Report. Human Trafficking Institute. Retrieved from https://traffickinginstitute.org/wp-content/uploads/2022/06/2021-Federal-Human-Trafficking-Report-Web.pdf

³ ​​Niethammer, C. (2020, February 2). Cracking the $150 billion business of human trafficking. Forbes. Retrieved from https://www.forbes.com/sites/carmenniethammer/2020/02/02/cracking-the-150-billion-business-of-human-trafficking/?sh=5b96bece4142

⁴ Human trafficking: Modern enslavement of immigrant women in the United States. American Civil Liberties Union. (n.d.). Retrieved from https://www.aclu.org/other/human-trafficking-modern-enslavement-immigrant-women-united-states#:~:text=against%20her%20will.-,The%20U.S.%20Department%20of%20State%20estimates%20that%2014%2C500%20to%2017%2C500,brutalized%2C%20raped%20and%20sexually%20abused.&text=Victims%20also%20frequently%20are%20deprived%20of%20adequate%20food%2C%20shelter%20and%20sleep.

⁵ Quinley, C. (2021). Along the Borderline: The Critical Links Between Human Trafficking and U.S.-Mexico Immigration. Retrieved from https://static1.squarespace.com/static/5f2ed301da84567c22edd5bf/t/6140bf82b6fc4b24b9026ea9/1631633282301/Spring-2021_Quinley.pdf

⁶ Lane, L., Gray, A., & Rodolph, A. (2022, June). 2021 Federal Human Trafficking Report. Human Trafficking Institute. Retrieved from https://traffickinginstitute.org/wp-content/uploads/2022/06/2021-Federal-Human-Trafficking-Report-Web.pdf

⁷ Jennifer M. Chacón, Tensions and Trade-Offs: Protecting Trafficking Victims in the Era of Immigration Enforcement, 158 U. Pa. L. Rev. 1609 (2010)

⁸ Quinley, C. (2021). Along the Borderline: The Critical Links Between Human Trafficking and U.S.-Mexico Immigration. Retrieved from https://static1.squarespace.com/static/5f2ed301da84567c22edd5bf/t/6140bf82b6fc4b24b9026ea9/1631633282301/Spring-2021_Quinley.pdf

⁹ ​​James C. Hathaway, The Human Rights Quagmire of “Human Trafficking,” 49 Va. J. Int'l L. 1, 5 (2008)

¹⁰ Lane, L., Gray, A., & Rodolph, A. (2022, June). 2021 Federal Human Trafficking Report. Human Trafficking Institute. Retrieved from https://traffickinginstitute.org/wp-content/uploads/2022/06/2021-Federal-Human-Trafficking-Report-Web.pdf

¹¹ Britta S. Loftus, Coordinating U.S. Law on Immigration and Human Trafficking: Lifting the Lamp to Victims, 43 Colum. Hum. Rts. L. Rev. 143 (2011)

¹² Gramlich, J. (2022, April 27). Key facts about Title 42, the pandemic policy that has reshaped immigration enforcement at U.S.-Mexico Border. Pew Research Center. Retrieved from https://www.pewresearch.org/fact-tank/2022/04/27/key-facts-about-title-42-the-pandemic-policy-that-has-reshaped-immigration-enforcement-at-u-s-mexico-border/

¹³ The “Migrant Protection Protocols”. American Immigration Council. (2022, January 7). Retrieved from https://www.americanimmigrationcouncil.org/research/migrant-protection-protocols

¹⁴ A Guide to Title 42 Expulsions at the Border. American Immigration Council. (2022, May). Retrieved from https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border

¹⁵ Barros, A. (2021, December 27). Biden's First Year Brings Modest Changes to Immigration Policy. VOA. Retrieved from https://www.voanews.com/a/biden-s-first-year-brings-modest-changes-to-immigration-policy/6367512.html

¹⁶ A Guide to Title 42 Expulsions at the Border. American Immigration Council. (2022, May). Retrieved from https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border

¹⁷ Joseph R. BIDEN, Jr., et al., Petitioners, v. State of Texas, State of Missouri, Respondents., 2022 WL 879252

¹⁸ 5,000 Asylum-Seekers Added to the Migrant Protection Protocols 2.0, Few are Granted Asylum. TRAC Immigration. (2022, June 14). Retrieved from https://trac.syr.edu/immigration/reports/686/#:~:text=Case%2Dby%2Dcase%20Immigration%20Court,awaiting%20their%20Immigration%20Court%20hearings.

¹⁹ Britta S. Loftus, Coordinating U.S. Law on Immigration and Human Trafficking: Lifting the Lamp to Victims, 43 Colum. Hum. Rts. L. Rev. 143 (2011)

²⁰ Britta S. Loftus, Coordinating U.S. Law on Immigration and Human Trafficking: Lifting the Lamp to Victims, 43 Colum. Hum. Rts. L. Rev. 143 (2011)

²¹ Access to counsel. National Immigrant Justice Center. (n.d.). Retrieved from https://immigrantjustice.org/issues/access-counsel#:~:text=Legal%20counsel%20not%20only%20ensures,reached%20an%20all%2Dtime%20high. ²²A Guide to Title 42 Expulsions at the Border. American Immigration Council. (2022, May). Retrieved from https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border