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Domestic Violence Awareness Month: Remembering the Origins of WATCH

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Robin Phillips, Executive Director of The Advocates for Human Rights, presents Susan Lenfestey with the 2019 Golden WATCH Award

October is Domestic Violence Awareness Month, as well as the month in which Sheila Wellstone and her husband Sen. Paul Wellstone died in the crash of a small airplane in 2002.

For those who knew her, the two are forever linked, because Sheila was a leader in bringing awareness to the crushing impact of domestic violence.

A self-described ‘wrestling mom’, Sheila traveled the state with Paul during his 1990 senate campaign.  As she sat in coffee shops and VFW halls, she heard women talking about the abuse they suffered in their own homes at the hands of the men they thought loved them.  While economic dependency played a role, it was also a mix of fear and shame that shackled them to their abusers.

Recognizing these women and children needed laws and services to help them find safety and to break the cycle of violence, Sheila and Paul enlisted then Sen. Joe Biden to help them draft the bill that would become the Violence Against Women Act of 1994.

Meanwhile, 1991 saw the nomination of Clarence Thomas to the United States Supreme Court and the testimony of Anita Hill about the sexual comments Thomas had allegedly made to her when they worked together in a previous job.   The panel of male senators sniggered their way through her testimony like embarrassed schoolboys, and we know how that turned out. I still believe Anita Hill!

Shortly after that, the Star Tribune ran a series called “Free to Rape,” detailing the lenient sentencing practices in Minnesota in cases of rape and domestic assault.

In that series, a Hennepin County victims’ advocate said that she wished there was an organization like MADD to keep an eye on the courts.  “Until that happens, nothing will change.”

That article was the catalyst for WATCH (Women At The Court House, later condensed to WATCH), which I helped found later that year.  The mission was to make the courts more responsive and effective in handling cases of violence against women and children and to create a more informed and involved public.

The idea was simple: trained volunteers would monitor felony cases of sexual assault and domestic violence from arraignment through sentencing. They would note “objectively observable behaviors” of court personnel, such as timeliness, ability to he heard, attentiveness to the victim, apparent race of the victim and the defendant, amount of bail set, any upward or downward departures from the sentencing guidelines, as well as how much of the proceeding took place in the judges’ chambers.

Cases with unusual outcomes would be referred to staff for further research to develop a more complete understanding of the issues affecting the case.   WATCH looked for systemic patterns of behavior, not for the occasional misstep.

And yes, volunteers would carry clipboards because judges requested a way for them to be easily identifiable to them, but not to a jury.  Red clipboards were chosen because they were on sale the day we went shopping, not as an incendiary color to intimidate anyone (as one judge later charged)!

After one year, WATCH issued its first report, Hennepin County Criminal Courts, A View from the Outside, which was based on observing more than 1600 appearances in cases related to domestic abuse and criminal sexual conduct.  The report can be found here:

The report made recommendations on how the often-byzantine system could be more easily navigated by the public, especially victims and their families, as well as changes to certain policies that left victims exposed to more danger  As Hennepin County District Court Judge Daniel Mabley wrote at the time, “The report demonstrates that sometimes the best ideas for change come from “outsiders” who are not biased by the assumptions and history that often blinds insiders to the need or potential for change.”

Over the years, WATCH expanded into observing and reporting on similar cases at the misdemeanor level, conducted a multi-year monitoring and research project in child protection court, advocated successfully for a designated domestic violence court, monitored family court in order for protection hearings, compared sentencing practices in misdemeanor domestic violence cases in the suburban courts to those in the downtown court, worked to pass legislation making strangling a felony offense, not a misdemeanor, and much more.  Recently, WATCH expanded into Ramsey and Washington counties and issued two reports on the prosecution of sex trafficking in those jurisdictions.

But in the very early years, we were encouraged and guided by Sheila Wellstone. She moved behind the scenes to bring domestic violence out of the shadows. With others, including WATCH, she helped change the legal and cultural attitudes that viewed domestic violence as a family matter.

HRAD 2019 R Park & Susan Lenfestey Bill C photo
Rosalyn Park, Director of The Advocates’ Womens’ Human Rights Program, and Susan Lenfestey announcing that WATCH will become a project of The Advocates for Human Rights (June 2019)

WATCH recently became a project of The Advocates for Human Rights, and I cannot imagine a more perfect partnership.

Our work is cut out for us.  In 2017, 24 people in Minnesota died as a result of domestic violence, 19 of them women, the other five family members or friends of the victims.

All acts of violence are horrific, but violence in the home passes its toxic seeds on to the next generation, and the next after that. Children who grow up witnessing abuse have a difficult time breaking the cycle.

In October, we pause to remember those who have been silenced by an intimate partner, and to renew our commitment to end the pandemic of domestic violence.  And I’d add, to honor the courageous work of Sheila Wellstone.

To volunteer with The Advocates’ WATCH Project, please click here.

By: Susan Lenfestey, founder of WATCH, the court monitoring and judicial policy non-profit based in Minneapolis, MN. Susan is the 2019 Gold WATCH Award Recipient. 

 

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The Rights of Children Whose Parents Are Sentenced to Death – The Case of Tunisia

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Lisa Borden (The Advocates for Human Rights), Bronwyn Dudley (World Coalition for Human Rights,and Choukri Latif (Coalition tunissiene contre la peine de mort)

As a longtime practicing attorney in the United States, I spent much of my professional career working on cases related to criminal justice, including prison conditions and the death penalty. My death penalty work brought me in contact with The Advocates for Human Rights several years ago, when I had the opportunity to write a report to the UN Human Rights Council about the death penalty in the United States. So began a volunteer relationship in which I was able to participate in The Advocates’ UN work to abolish the  death penalty and many other issues. It’s thanks to that relationship that I’m now studying International Humanitarian Law and Human Rights at the Geneva Academy in Switzerland, and hope to continue addressing criminal justice issues using different approaches after graduation.

While pursuing my studies, I am also still a volunteer for The Advocates in Geneva. Recently, I had the opportunity to participate in a pre-session meeting with the UN Committee on the Rights of the Child regarding Tunisia’s progress in implementing the Convention on the Rights of the Child. The pre-session meetings provide a chance for non-governmental organizations (NGOs) and other interested stakeholders to provide information to the Committee in a confidential setting. I joined Bronwyn Dudley of the World Coalition Against the Death Penalty, and Choukri Latif of the Coalition tunissiene contre la peine de mort (a Tunisian anti-death penalty NGO), to address the committee regarding Tunisia’s failure to implement the rights of children whose parents have been sentenced to death or were executed. The Advocates, the Tunisian Coalition, and the World Coalition highlighted these issues in a recent report to the Committee.

Children: Unseen victims of the death penalty

WDADP 2019 poster

This year’s World Day Against the Death Penalty, on October 10, 2019, will focus on how children around the world are affected by the death penalty, so meeting with the Committee on the Rights of the Child was a timely opportunity to apply this broader concern to a concrete situation. The World Coalition seeks to raise awareness of the severely damaging psychological trauma inflicted upon children whose parents are sentenced to death, at every stage of the process from arrest to incarceration to execution.

Punishing Tunisian Children for Their Parents’ Wrongdoing Violates the Convention

As in many retentionist countries, people sentenced to death in Tunisia typically spend many years in prison. Indeed, since Tunisia has thankfully been observing a moratorium on the death penalty since 1991, parents who are sentenced to death may spend decades in prison. As Choukri explained in his opening statement to the Committee, Tunisia is failing to protect the rights of those children to maintain meaningful relationships with their parents during their incarceration. Many of these parents are incarcerated far away from their families, and the prohibitive costs of transportation prevent children from exercising their visitation rights. Even for those who can do so, visits are limited to 30 minutes and, for younger children, direct physical contact with the parent is not permitted. Children of death-sentenced and executed parents are not provided with badly needed medical and mental health care to cope with the trauma they endure. Additionally, a new anti-terrorism law has expanded the potential application of the death penalty in Tunisia, including to children themselves, and is very unclear as to what conduct is covered.

Tunisia Must Reform Its Laws and Practices to Respect Children’s Rights

During follow-up questioning by Committee members, an inquiry was made about whether Tunisia has good laws in place and just needs to improve implementation, or whether more work needs to be done on the laws themselves. In addition, Committee members requested more information about the justification for the anti-terrorism law and possible alternative measures. These questions provided me with an opportunity to offer some specifics about the failings of Tunisia’s laws, and how Tunisian authorities must address those failings to bring Tunisia into compliance with its human rights obligations.

Around the world, the death penalty in anti-terrorism laws is typically justified as a supposed deterrent to would be terrorists. But academic research reveals that there is no support for the notion that the death penalty is a deterrent to terrorism. In 2016, the UN Special Rapporteurs on summary executions, torture, and human rights while countering terrorism, respectively, specifically warned against using the death penalty in an effort to deter terrorism, stating:

“there is a lack of persuasive evidence that the death penalty could contribute more than any other punishment to eradicating terrorism. The death penalty is also an ineffective deterrent because terrorists who are executed may just gain in prestige, as may their cause.”

In other words, the death penalty, if it has any impact at all, may provide incentives to terrorists.

Tunisia Creates Unnecessary Barriers to Children’s Rights

With regard to the need to continue reviewing and revising laws, I offered the laws affecting children of death-sentenced parents as an example showing that Tunisia’s laws are not yet compatible with the Convention and continue to be in need of reform. The Tunisian Constitution of 2014 expressly recognizes the rights of children and the government’s obligation to act in their best interests, and the law on Special Regulations for Prisons expressly provides that children are entitled to visit their detained parents. But these laws are vague and do not give Tunisian authorities direction about how to account for the recognized rights and obligations. In law and in practice, Tunisia continues to violate children’s rights through arbitrary interference (30 minute visit limitations and lack of physical contact), and failure of the government to make any provision to address the financial barriers associated with transportation to far-flung prison facilities. The latter failure constitutes a de facto denial of the right to visit, but Tunisia does nothing to take this right into account when deciding where a parent will be incarcerated. In fact, Tunisian authorities often deliberately place parents far from their families, considering such isolation to be part of the parent’s punishment. Such punishment obviously violates the rights of the child, just as expressly denying visits would.

I was also able, thanks to the detailed research Bronwyn conducted before the meeting, to point the Committee to two of its own previous recommendations that supported our position that Tunisia has a positive obligation to take the child’s interests into account during criminal proceedings related to the parent.

To learn more about The Advocates’ work on the Death Penalty, click here. For ideas of things you can do to take action for World Day Against the Death Penalty, click here.

By: Lisa Borden, a volunteer with The Advocates for Human Rights, currently based in Geneva, Switzerland.

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The Fight Against the Death Penalty Continues

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Brunei Darussalam’s delegation at the UN Human Rights Council 

In May 2019, the United Nations Human Rights Council held its 33rd session of the Universal Periodic Review (UPR), as part of the third cycle of the review process. The UPR examines the status and progress of human rights in all 193 member countries of the United Nations. (For more information about the UPR, check out Chapter 9 of Human Rights Tool for a Changing World here.) Among other countries, both the Democratic Republic of Congo (DRC) and Brunei Darussalam received recommendations to further their progress toward abolishing the death penalty.

Both countries have a de facto moratorium on the death penalty. Brunei has had no reported executions since 1957, and the DRC has had the moratorium since 2003. But neither country has ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights to officially move toward abolition of the death penalty. Even though international human rights standards mandate that countries retaining the death penalty must reserve it for only the most serious crimes, Brunei continues to sentence people by hanging for far less.

Under the Syariah Penal Code, adultery, sodomy, rape, apostasy, blasphemy, and insulting Islam are all punishable by death by stoning in Brunei. In the DRC, the administration of the death penalty lacks transparency. Just last year, the government handed down 41 death sentences.

At the Universal Periodic Review

Due to these issues, at the UPR in May both countries faced increasing pressure to abolish the death penalty. Brunei Darussalam received 96 recommendations on the death penalty from 50 countries–38.6% of all recommendations the country received, and a 336% increase from Brunei’s second cycle UPR. The recommendations ranged from ratification of the Convention against Torture to repealing problematic provisions in the Penal Code. The DRC received death penalty recommendations from 17 countries, an increase of 13.3% from the second cycle.

The Advocates, together with the World Coalition Against the Death Penalty, pushed for these recommendations behind the scenes. The two organizations submitted joint stakeholder reports on both countries. (To read the full reports, visit: Brunei and the DRC). Through both emails and in-person meetings, The Advocates lobbied 48 of the 50 countries that made death penalty recommendations to Brunei Darussalam, and 16 out of the 17 countries that made death penalty recommendations to the DRC.

A Lack of Progress?

After taking months to examine the recommendations from May, last month both Brunei Darussalam and the DRC “noted” all the recommendations relevant to the death penalty. In the language of the UN, noted means rejected. Both countries cited their respective sovereignty over the issue as the reason for rejecting the recommendations. Brunei Darussalam used the country’s religious background to justify the current use the death penalty in the Penal Code. Many countries and organizations, including Belgium and the UK, urged the government of Brunei to reconsider its decision. Similarly, a representative of the government of the DRC told the Human Rights Council that the nation’s own parliament should make the final decision on the death penalty. A delegate from Germany, however, urged the DRC to ratify the Second Protocol.

Despite noting these recommendations in the official meeting, the Brunei government took a small step forward. On May 6, the Brunei government announced that it would extend its moratorium on capital punishment to the crimes of homosexuality and adultery. Under laws that had taken effect in April, the two crimes would otherwise have been eligible for the death sentence of stoning. Furthermore, a representative from the government of Brunei told the Human Rights Council that the government had been making progress toward ratifying the Convention Against Torture. Many governments and non-governmental organizations welcomed this move.

The fight persists

This small victory, however, should not overshadow the larger picture. Despite overall progress toward abolition of the death penalty, many countries’ practices are far removed from international human rights standards. The cases of Brunei Darussalam and the DRC signal the difficulty ahead. The Advocates will continue to fight for a humane justice system on an international level.

To learn more about the death penalty, please visit our website here. Also, October 10 is the 2019 World Day against the Death Penalty, and encourage you to get involved.

To watch the full videos of the September 2019 meetings of the Human Rights Council adopting the outcomes of the UPRs of Brunei and the DRC, please visit the links below:

Brunei Darussalam

The Democratic Republic of Congo

By: Yunze Wang, an intern with the International Justice Program at The Advocates for Human Rights and a student at Macalester College.

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Sexual Education in Schools in the Republic of Moldova

Laura Vition

My name is Laura.  I am 15 years old and I am from the Republic of Moldova. I am a sociable person and passionate about different things such as traveling, reading, psychology, photos and blogging, film and social justice. This is my first post for Advocates for Human Rights blog and I want to share some of  my experience and thoughts about human rights and related issues specific to teenagers, such as cyberbullying, harassment and discrimination.

I have been volunteering for different organizations since I was 13.  My first volunteer experience was for one of the largest youth-led networks in Moldova which works with and for young people between the ages of 13 and 24 to advance and promote sexual and reproductive health and rights (SRHR) of adolescents and youth. I was 14 years old when I finished the training and became one of the Y – peer trainers. The trainers have to organize several public discussions on sexual and reproductive health and rights for their peers in their lyceums.

I have to say that education about sexual and reproductive health and rights is almost absent in Moldova. Moldova is a traditional country, where the influence of the church is very large. We do not talk freely about sex, sexuality, reproductive health, menstruation, contraception, mutual consent, etc. These topics are still considered taboo, and even indecent and dirty, especially if this interest or questions are coming from teenagers. We cannot discuss these subjects with teachers and parents because we are concerned about their reactions, which are usually negative. As my mother says, the same was true 25 years ago and nothing has changed. I thought that teachers who cannot talk about sexual and reproductive health and rights would welcome an organization with relevant experience in the field, so I decided to organize four informative lessons in my school.

The experience of talking in public about things which girls should not say was great and challenging at the same time. Some boys tried to intimidate me, telling jokes, ignoring, giggling or interrupting me, while others tried to encourage me to continue. The worst thing was the pressure from my teacher who was present for the last lesson. She did not interfere while several boys were laughing and asked the boys to leave the class when I was talking about menstruation. Furthermore, she said that the subjects were inappropriate, and talking about contraception at this age is a sign of immorality and indicates that you have already had sex. When this insinuation is coming from an adult who has power and authority is even worse. It sounds like permission for pupils to stalk somebody. Honestly, I felt so bad that after finishing the lesson that, when nobody could see me, I cried. The next day the teacher was called by one angry parent of a boy who said that these topics should not be discussed in the school. Even now, after several years, I am wondering why the adults are so afraid of talking about normal things, even more so than their children. In actuality, we view these things as normal, and even joke that we could provide some new information to our parents.

Nothing has changed since then except the increasing number of rapes, sexual harassment and pregnant teenagers. Of course, when something like this is happening the girl is the one to be blamed and the one whose life is changing dramatically. I know some of the politicians in our country have started to talk about the importance of  sexual and reproductive education, but they are still very reserved. I hope, however, that my generation will manage to push these challenging issues forward on the political agenda and get rid of the traditional influence.

By youth blogger Laura Vition. Laura is a high school student in Chisinau, Moldova. 

Proposed Regulation Seeks to Remove Adjudication Deadline, Threatens to Leave Asylum Seekers Without Work Authorization Indefinitely

FeaturedProposed Regulation Seeks to Remove Adjudication Deadline, Threatens to Leave Asylum Seekers Without Work Authorization Indefinitely

Asylum seekers in the United States may not work without authorization from federal immigration authorities. Proposed regulations threaten to leave asylum seekers without employment authorization indefinitely which they await decisions on their asylum applications.

Federal law prohibits asylum applicants from receiving employment authorization unless their applications have been pending at least 180 days. 8 U.S.C. § 1158(d)(2). Current regulations seek to ensure that people with pending asylum applications can work as soon as authorized by statute. The administration has proposed new regulations that would eliminate the regulatory time frame in which the Department of Homeland Security (DHS) must grant or deny the employment authorization application.

Under existing federal law, a person with a pending asylum application may apply for and receive authorization to work while their asylum application is pending. Regulations require an asylum applicant to wait at least 150 days after submitting an asylum application before they may apply for employment authorization. DHS, in turn, must process the application within 30 days of receipt, making the total wait time about six months after applying for asylum. 8 CFR § 208.7(a)(1).

The Department of Homeland Security has flagrantly disregarded the 30-day rule, resulting in a 2018 federal court order requiring DHS to comply with its own regulation and process applications within the required timeframes. Rosario v. USCIS. [1]

Rather than complying with the federal court order, DHS is trying to change the rule. On September 9, 2019, USCIS issued a proposed regulation to eliminate the 30-day processing rule and give the agency an unlimited window in which to process work permit applications.[2]

DHS is currently accepting comments on the proposed elimination of the 30-day processing time, and we encourage those concerned to submit such comments.

WHY THIS MATTERS

The Advocates for Human Rights is concerned that this change will harm clients, businesses, and communities by further delaying the time an asylum applicant must wait to legally work or get a driver’s license while their application is pending. This change will burden private support systems and charities, make it difficult for small businesses to find workers, and could have multiplier effects in terms of destabilizing communities. The Advocates is also concerned that this change represents yet another attack on the part of this Administration, which has consistently attempted to impede the right to seek asylum.

Of particular concern is the proposed elimination of the 30-day rule without providing a maximum processing time. Already, the six-month waiting period places a heavy burden on asylum seekers who were forced to flee, often having to leave behind or spend in transit any resources they may have had.

Asylum seekers today face long backlogs in asylum processing, often waiting years after filing the asylum application for an interview and, even later, a decision. Asylum seekers are often vulnerable, with medical and mental health needs due to their trauma and persecution. Generally excluded from public assistance, asylum seekers must work to provide food, clothing, shelter, and other basic needs for themselves and their families. Asylum seekers who were forced to leave spouses and children behind must save thousands of dollars to pay for travel expenses. Without employment authorization, asylum seekers are dependent on individual and other private charity.

Indefinitely blocking asylum seekers’ ability to support themselves and their families is an abuse of discretion and an attempt to further deter people from seeking asylum in the United States. The proposed rule comes on top of extreme adjudication delays by USCIS across all types of cases and recent changes in USCIS customer service procedures which make it nearly impossible to follow up on pending cases.

In addition, the proposed rule is part of a pattern of animus towards the right to seek asylum this administration has shown. The justifications contained in the proposed rule are veiled attempts to justify what is an attack on the rights of asylum seekers and a pattern of practice by this administration aimed at breaking the asylum system.

The Administration attempts to justify the proposed rule on the basis of national security and vetting concerns and on administrative efficiency interests. In terms of administrative efficiency, the proposed rule notes the burden that has resulted from shifting staff to timely process EAD applications in compliance with Rosario v. USCIS and claims there will be a cost saving by eliminating the timeline. However, it notes “USCIS could hire more officers, but has not estimated the costs of this and therefore has not estimated the hiring costs that might be avoided if this proposed rule were adopted.”

The proposal also cites vague security concerns which the federal court in Rosario found to be sufficiently low to order USCIS to comply with the 30-day processing deadline. Any need for additional vetting prior to issuance of employment authorization could be addressed by less draconian means than simply eliminating the processing parameters for all applicants.

The Universal Declaration of Human Rights enshrines the right to seek and enjoy asylum from persecution. The United States has committed to that principle through the International Convention on Civil and Political Rights, the Refugee Convention and Protocol, and the Convention Against Torture. This right has been codified in federal law. Without access to a means of basic support during the asylum process, the United States weakens its commitment to this fundamental human right.

WHAT TO DO

We encourage our volunteers, communities, and supporters—as well as applicants themselves—to submit a comment to USCIS discouraging this change.  Directions for how to do so can be found below, and sample wording is provided. Comments must be received on or before November 8, 2019.

In particular, DHS is specifically seeking comments on the following items.  Therefore, comments by supporters who have specific knowledge or relation to the following topics would be encouraged:

  • DHS also acknowledges the distributional impacts associated with an applicant waiting for an EAD onto the applicant’s support network. DHS cannot determine how much monetary or other assistance is provided to such applicants. DHS requests comments from the public on any data or sources that demonstrate the amount or level of assistance provided to asylum applicants who have pending EAD applications.
  • DHS requests comments from the public that would assist in understanding costs not described herein as relates to the impact on small businesses (referencing the IRFA).

HOW TO SUBMIT A COMMENT

You may submit comments on the entirety of this proposed rule package, which is identified as DHS Docket No. USCIS-2018-0001, by any one of the following methods:

· Mail: Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Mailstop #2140, Washington, DC 20529-2140. To ensure proper handling, please reference DHS Docket No. USCIS-2018-0001 in your correspondence. Mail must be postmarked by the comment submission deadline. Please note that USCIS cannot accept any comments that are hand delivered or couriered. In addition, USCIS cannot accept mailed comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives.

[1] Available at: https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/rosario_vs_uscis_order_granting_plaintiffs_motion_for_summary_judgment_and_denying_defendants_motion_for_summary_judgment.pdf

[2] Available at: https://www.federalregister.gov/documents/2019/09/09/2019-19125/removal-of-30-day-processing-provision-for-asylum-applicant-related-form-i-765-employment

Make every day Labor Day

FeaturedMake every day Labor Day

It’s Labor Day in America, a time to celebrate the important labor protections guaranteed to us all. Today, thanks to organized labor, workers by law have a right to various protections, including timely payment, minimum wage, overtime pay, workplace safety, freedoms from harassment and discrimination, and more. Despite these protections, some employers violate these labor rights.

Of particular concern are those violations that constitute labor trafficking—a significant issue that gets far too little attention. Since 2007, the National Human Trafficking Hotline has identified more than 5,000 victims and survivors of labor trafficking. The number of unidentified victims, of course, is much higher. The International Labour Organization (ILO) estimates that there are more than 20 million victims of labor trafficking worldwide—with about 1.5 million in the U.S., Canada and Europe.

U.S. law defines labor trafficking as “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery.” (Trafficking Victims Protection Act, 22 USC § 7102(9)). In other words, it is a situation in which a person is forced to perform labor or services through threats or use of violence, lies, and other forms of coercion. Labor trafficking can happen across international borders, state borders, or even within one city—movement is not required. Both foreign nationals and U.S. citizens may be victims or perpetrators. And, it’s likely touched your life in some way or another—the food you are eating, the house you are living in, the hotel you’ve stayed at, etc.

While U.S. citizens can become victims of trafficking, many non-citizens are particularly vulnerable. For these folks, trafficking can begin or occur in their home countries, along their journey, or once they have arrived in the United States. Because traffickers prey on vulnerabilities, foreign nationals have significant risk factors due to language differences, cultural connections, community ties, resources, unfamiliarity with the law, and immigration status.

Recognizing these vulnerabilities—and the important role victims play in reporting, investigating and leading to punishment of traffickers—U.S. law has made some efforts to help. U.S. legislation provides special non-permanent status (“T nonimmigrant visa/status”) to victims who are in the U.S. on account of severe forms of trafficking and have been helpful to law enforcement in investigating and/or prosecuting traffickers. Providing this form of lawful status gives many victims the courage to confront their trafficker without fear of being deported, allowing for increased investigation and punishment of trafficking. It also provides a crucial path toward ensuring survivors can leave dangerous situations and have resources to recover and move forward after being trafficked.

Yet, the T visa is too rarely utilized. Federal law provides for 5,000 T-1 visas annually. Since its inception, however, that quota has never been reached. This indicates, in part, the difficulty of identifying victims. However, it also indicates the difficulty of getting a T visa approved. In 2018, there were 1,613 T visa applications; however, USCIS approved only 576 that year—about 35 percent.[1] That same year, USCIS denied 300 applications, and the rest remain pending.[2] By comparison, in 2015, USCIS received 1,040 applications and approved more than half.[3]

The current anti-immigrant rhetoric and policy exacerbates the problem. Workers who might otherwise attempt to leave a trafficking situation or report their trafficker may be too fearful to do so. Employers may use such immigration policies to further exploit laborers, banking on the fact that migrant laborers don’t know their rights or the protections offered by law, and citing increased immigration enforcement as a threat. Additionally, amid the push to ramp up the deportation machine, immigration officers may take less care in determining whether someone is a potential victim or witness of trafficking instead of a deportable migrant.

The recent raid in Mississippi reflects this. More than 600 people were taken by immigration officials. There is no automatic screening for trafficking, despite the fact that these folks have a right to seek protections, and likely have important information that could help stop trafficking or other forms of labor exploitation. Nonetheless, the employer is continuing to operate and was not immediately charged, unlike its non-citizen employees.

In our work, The Advocates for Human Rights seeks to support victims of trafficking by strengthening the legal response to trafficking, conducting community outreach, victim identification, and providing legal services and referrals for support to victims. Since our labor trafficking program started about two years ago, we have assisted nearly 50 clients who are victims of severe forms of human trafficking. Luckily, for each of them, the T nonimmigrant visa allows them some measure of protection and a road to recovery.

Unfortunately, however, this path is becoming more fraught. It is now taking about 18 months for cases to be processed—time in which the vulnerable victim of trafficking must often wait far from family and with little support network. The Trump Administration is also making the path more difficult with increased demands for more evidence, denials of requests to waive fees despite statutory authority, protracted decision making, and greater resistance to providing protections.

Moreover, in the anti-immigrant climate, victims that were already fearful of reporting and interacting with the government are all the more fearful due to the harsh stance on immigration. And, with the government less likely to use mechanisms designed to encourage and support reporting (such as Continued Presence and Deferred Action), many victims remain in precarious situations. Unfortunately, while the federal government remains vocal about ending trafficking and supporting victims in theory, the current anti-immigrant posture of the administration has also meant that foreign national trafficking victims are not seeing that in practice.

As we celebrate this Labor Day, we need increased awareness of those who are being denied their labor rights due to labor trafficking, and are eager for the Federal Government to take greater strides towards preventing and punishing labor trafficking while properly supporting victims, regardless of their immigration status.

Lindsey Greising is a staff attorney in The Advocates for Human Rights’ Refugee and Immigrant Program.

[1] https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Victims/I914t_visastatistics_fy2019_qtr2.pdf

[2] Id.

[3] Id.

Asylum Under Attack

FeaturedAsylum Under Attack

The current administration in Washington is waging an all-out war on asylum, which it falsely characterizes as a charade or loophole rather than an essential human right. While the war is focused on the influx of refugees at the southern border who flee violence and chaos in Central America, it threatens to demolish protections for refugees all over the world who come to the United States seeking safety. The Advocates for Human Rights deals every day with the desperate ones whose fates are at issue. Since policy affects real people, it is instructive to examine the government’s anti-asylum initiatives in juxtaposition with just one of the many stories in our case files, which is used with our client’s consent.

Maria was 11 years old and living with her family in Guatemala when a 22-year-old man began preying upon her, inducing her to engage in a sexual relationship with him. Her father forbade her from seeing the man, but he coerced Maria into returning to him by threatening to harm her family if she didn’t. The man kept her locked in a room in his mother’s house.

Having failed in the courts with previous anti-immigration tactics, the U.S. government just launched two new attacks on asylum by executive fiat, with other assaults being planned..

At the age of 14, Maria was forced to marry her abductor. She went to the police in Guatemala, but they told her this was a domestic matter that she should “work out” with her husband. When Maria’s husband found out she had gone to the police, he beat her. As time went on, the beatings continued.

First, the administration announced that there would be a great expansion of the use of the expedited removal process, by which immigration courts and asylum officers are bypassed completely and lower-level immigration officials are allowed to apprehend and deport undocumented immigrants with no due process so long as they have not been in the country for two years. The U.S. Commission on International Religious Freedom has sharply criticized the expedited removal process, finding that border officials often are biased against asylum claims and fail to take steps necessary to ensure that asylum seekers are protected from arbitrary expedited removal. Nevertheless, the administration has embraced it.

Maria became pregnant and told her husband. He continued to beat her, so badly that she lost the baby. She escaped and hid with a family member, but her husband searched for her relentlessly. With no other escape from her situation, and no possibility of help from her country’s government, Maria embarked on the arduous and dangerous journey through Mexico and across the U.S. border.

A second attack on asylum was the announcement of a new rule excluding people from asylum if they failed to first ask for asylum in a country through which they travelled. While this rule would affect all refugees, it is directed mainly at the Central American refugees who cross through Mexico and Guatemala before reaching the United States.

Non-profit advocacy groups promptly sued, challenging the administration’s third- country rule. Among other grounds, they argued that the rule violates an express Congressional prohibition against relying on the asylum procedures of any country unless we have in place with that country a “safe country” agreement, ensuring their asylum procedures provide an acceptable level of safety for claimants. No such agreement exists with Mexico. (On July 26, the U.S. entered into a purported safe country agreement with Guatemala, even though Guatemala does not come close to meeting the standards for a safe country and was in fact the country from which Maria fled due to the lack of any governmental remedy for the domestic violence that threatened her life.)

On July 24, federal district courts on opposite coasts issued opinions concerning the new rule. U.S. District Judge Timothy Kelly in the District of Columbia refused to enjoin the rule, essentially on a finding that the advocacy groups had failed to make a factual showing of standing to make their claims. The very same day, however, Judge Jon Tigar of the Northern District of California issued a lengthy opinion enjoining the rule, finding ample evidence that no reasonable asylum process was available in either Mexico or Guatemala. Appeals in both cases seem inevitable.

Maria found her way to The Advocates for Human Rights. Represented by Program Director Sarah Brenes, Maria won asylum. She is now living safely in the United States, where she is finishing high school and hopes to become a police officer.

Either of the latest attacks on asylum might have been used to deport Maria and send her back to her violent husband and a government unwilling to protect her. Can anyone believe that the United States would somehow have benefitted from that?

A humane asylum system is critical if we are to fulfill our legal and moral obligations to offer succor to the world’s most desperate. As many of us have been asking for some time now, what kind of country are we?

-James O’Neal, Board Chair of the Advocates for Human Rights