Works in Progress Group # 9 Immigration and Human Trafficking

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Session Type: Works-in-Progress

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Trafficking and the Shallow State

More than two decades ago, the U.S. Congress enacted the Trafficking Victims Protection Act (“TVPA”) to establish new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa to protect immigrant victims from deportation. Since 2000, however, the annual cap of 5,000 T visas has never been reached, and in the last four years, approval rates have further declined. In 2019, for example, only 500 immigrant victims received T visas, and 43.2% of T visa applications adjudicated were denied. These developments came as former President Donald J. Trump proclaimed his deep commitment to end the “epidemic” of human trafficking and protect “innocent” victims.

Scholars have critiqued the protection framework for immigrant victims of trafficking, but this article unearths the often-unseen role of the “shallow state.” In contrast to the “deep state” of career bureaucrats, this article suggests that low-level administrative actors adjudicating T visa cases have subtly worked to erode protections for immigrant victims of trafficking. It unearths a range of tactics, including delay, rejection, and heightened stakes, that have made it more difficult for immigrant victims to navigate the T visa application process successfully. The article explores how these actions—often diffuse and obscured—have been hard to identify and subject to judicial review. Professor Dahlstrom's article ultimately warns that these actions have the potential to significantly erode protections for immigrant victims of trafficking for years to come. It then prescribes administrative and judicial remedies to ensure that protections remain vibrant and robust.


When Time Stands Still: Bringing Immigration Law and Practice into Conformity with the Basic Tenets of our Civil, Criminal, and Administrative Law Regimes

Regardless of how many years pass by or the positive equities that accrue, noncitizens often find themselves facing deportation, denial of immigration benefits, and/or prolonged detention, judged only by one moment in time. This harsh approach is inconsistent with civil, criminal, and administrative law regimes, all of which contain statutes of limitations. The unforgiving notion of time standing still is woven into other aspects of immigration law as well—the manner of initial entry into the U.S. can result in a lifetime bar to due process in removal proceedings, and filing a “frivolous” asylum application (even if it is withdrawn) carries a lifetime bar to immigration benefits. As a matter of practice, immigration judges routinely deny bond to detained noncitizens with pending criminal charges, pre-judging them to pose a danger to society, even when the allegations have been withdrawn.

After exploring jurisprudence and legislative history, Professor Nessel analyzes the theory behind statutes of limitation and laches defenses in other areas of law to argue for a statute of limitations for removal proceedings. She also makes a broader moral and policy-based argument that after a certain period of time, a noncitizen’s membership in the nation is so well-established and meaningful that deportation should no longer be available. Similarly, She argues for time-based limitation on the denial of immigration benefits based on a finding of frivolity and for detained noncitizens to be presumed innocent of crimes that have not been adjudicated for purposes of danger assessments in bond hearings.