Abstract
This article explores how competing and overlapping legal classifications such as ‘victim of trafficking’, ‘smuggled migrant’, ‘illegal alien’, and ‘refugee’ play out in the United States (US) immigration system. In particular, it focuses on the repeated failure of US authorities to identify and protect survivors of human trafficking who were victimised by the smugglers they voluntarily employed in fleeing their home countries—a scenario that is becoming increasingly common in the midst of the Central American refugee crisis. The article draws upon the authors’ experience providing direct legal representation to Central American migrants in the US to discuss how misassumptions about this population, a misunderstanding of the relevant legal terminology, and the US government’s focus on border security negatively impact the conduct of law enforcement agencies and immigration adjudicators. Due in large part to the US government’s increased restrictions on, and criminalisation of, many forms of migration, survivors of human trafficking who are victimised by smugglers often find themselves classified as ‘illegal aliens’ or ‘criminal aliens’, and their legitimate claims for protection are frequently dismissed for the irrelevant fact that they initially consented to be smuggled. Such mistreatment and misidentification fail to hold perpetrators accountable, and to offer assistance to populations that the US government has pledged to defend.
Highlights
Under United States (US) federal law, the legal definitions and procedural screening mechanisms associated with terms such as ‘human trafficking’, ‘human smuggling’, and ‘illegal immigration’ dramatically affect the immigration remedies available to the individuals concerned, and the public benefits and aid programmes they can access
This article explores how competing and overlapping legal classifications such as ‘victim of trafficking’, ‘smuggled migrant’, ‘illegal alien’, and ‘refugee’ play out in the United States (US) immigration system. It focuses on the repeated failure of US authorities to identify and protect survivors of human trafficking who were victimised by the smugglers they voluntarily employed in fleeing their home countries—a scenario that is becoming increasingly common in the midst of the Central American refugee crisis
Based on an analysis of our cases and the screening mechanisms used by Law Enforcement Agencies (LEAs) at the US-Mexico border, we examine how the institutions tasked with the preliminary identification and protection of human trafficking survivors frequently fail to do so in practice, thereby impeding the survivors’ access to legal rights and protections
Summary
Under US federal law, the legal definitions and procedural screening mechanisms associated with terms such as ‘human trafficking’, ‘human smuggling’, and ‘illegal immigration’ dramatically affect the immigration remedies available to the individuals concerned, and the public benefits and aid programmes they can access Such terms strongly influence how they are perceived and dealt with by US immigration authorities, including US Customs and Border Protection (CBP), US Citizenship and Immigration Services (USCIS), US Immigration and Customs Enforcement (ICE), and other federal government agencies. Carmen’s story provides a window into how competing and overlapping classifications play out in the US immigration system Keeping her case in mind, we begin this paper with a review of US legal definitions and immigration protections that are relevant in the wake of the Central American refugee crisis.
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