Domestic Violence And Immigration Legal Status In The US
12 December 2020Author: NYC Immigration lawyer Alena Shautsova
New York Immigration lawyer Alena Shautsova based in Brooklyn, New York City, helps clients to obtain US Immigration benefits.
With the rise of domestic violence cases during the COVID-19 era many individuals that have previously been experiencing domestic violence are now facing an even greater challenge by spending additional time with their abusers due to some of the country’s mandatory lockdowns. Typically, a person will contact my office or their local police authorities when the situation has gone far past the legal standard to qualify for a victim of domestic violence. However, now, more people are coming forward with inquiries related to domestic violence but that does not quite fit that of a VAWA case. Recently, the most common inquiry starts like this:
I think that I am a victim of domestic violence, my partner and I are unmarried (or my partner is not a US Citizen) but my partner is forcing me to work and give them all of my money, or forcing me to participate as a prostitute or ‘swinger’ and I do not like it. My partner is also threatening to report me to the immigration authorities or to the police if I do not cooperate. Can you help me?
The first thing that comes to mind in these situations is a VAWA petition for victims of domestic violence. However, one of the requirements of a VAWA petition is that a person needs to be married to a US Citizen and the citizen must be the abuser. In the aforementioned scenario, the person claims that their partner is either not a US Citizen or they refuse to marry them and continue to force them to work or sexually exploit them. Sometimes the partner will claim that they will marry the victim if they continue to perform the involuntary acts of servitude. Moreover, the partner threatens the victim to report them to immigration authorities or police authorities, or sometimes physical harm if they do not comply with the “requests.” If this scenario seems familiar, or if you know someone who has told you that they experienced something similar, they may be a victim of human trafficking.
The first thing that comes to mind when a person mentions human trafficking is a person either being sold as a sex slave across a border or sold as a labor slave across a border. These are examples of human trafficking, but the term is much broader when used in the context of US Immigration law. A person does not have to be trafficked into the country to be considered a victim of human trafficking. They can also be trafficked while they are already in the country, even if they entered the US illegally. The first step in understanding Human Trafficking with regards to US Immigration law is to take the definition and unpack it.
Human Trafficking as per US Immigration law is:
(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or
(B) 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.
Now, in both labor and sex trafficking, to qualify for human trafficking the labor or sex must be a result of force, fraud, or coercion. The important part of these statements is the usage of the word “or.” In the US, the usage of the word “or” or “and” is important, and while some argue in some of the international laws that the word “and” can be used as an “or,” no one has ever argued that “or” is a term that denotes inclusivity. Using the word “or” here in the definition allows an applicant three different options to prove human trafficking : (1) by force; (2) by fraud; (3) or by coercion. You do not have to prove that the trafficking was a result of all three which is important and broadens the eligibility of applicants.
Therefore, the young girl who was brought to the US through her “boyfriend’s” tales of a great new life only to then convince her that she needs to become a prostitute to pay off a coyote or become a housemaid to “pay the bills” but ends up giving all of her money to her boyfriend may be eligible to apply for human trafficking by coercion if the other conditions for eligibility are met. A person who was deceived into believing that a job agency in their home country got them a job in the US, came to the US and the job did not exist but was still forced to pay off an exorbitant sum of money for the travel can fit the fraud eligibility since the actual trafficking was not forced. The use of force to traffic a person to the US for labor or sex work can be as brutal as being kidnapped, drugged, and held hostage, for these people there is no doubt in their mind that they have been trafficked. However, the use of force also includes threatening your life or a family members life if you do not go with the traffickers and perform the work they ask.
Many cases have a combination of all three categories and it is important when putting these cases together to highlight as much detail as you can to prove each method of trafficking the trafficker/s used to bring the victim to the US even though you only need to prove one. If you believe that you, a friend, or a family member is or was a victim of domestic violence or human trafficking and needs help to fix their immigration status, please call the office at 917-885-2261 or send us an email at office@shautsova.com.