September 14, 2021

Via Federal e-Rulemaking Portal

Andria Strano, Ph.D.

Branch Chief, Humanitarian Affairs Division Office of Policy and Strategy

U.S. Citizenship and Immigration Services Department of Homeland Security

5900 Capital Gateway Drive Camp Springs, MD 20746

Re: Final Rule on Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status

81 Fed. Reg. 92266 (Dec. 19, 2016)

Dkt. No. USCIS-2011-0011

Doc. No. 2016-29900; RIN. 1615-AA59

Dear Dr. Strano,

Brooklyn Defender Services (“BDS”) submits these comments in response to the Department of Homeland Security’s (“DHS”) proposed Final Rule on Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, Docket No. USCIS-2011-0010-0001 (“Proposed Final Rule”), originally issued on December 19, 2016 at 81 Fed. Reg. 92266, Dkt. No. USCIS- 2011-0011 and reopened for comment on July 16, 2021.¹ See 86 Fed. Reg. 37670 (July 16, 2021). For the reasons set forth below, BDS supports the Proposed Final Rule in part and opposes it in part.

BDS is a full-service public defender organization in Brooklyn, New York, that provides multi- disciplinary and client-centered criminal defense, family defense, immigration, and civil legal services, along with social work and advocacy support. BDS represents low-income people in nearly 30,000 criminal, family, civil, and immigration proceedings each year. Since 2009, BDS has counseled, advised, or represented more than 15,000 clients in immigration matters, including deportation defense, affirmative applications, advisals, and immigration consequence consultations in Brooklyn’s criminal court system. About a quarter of BDS’s criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore are at risk of losing the opportunity to obtain lawful immigration status as a result of criminal or family defense cases. Our criminal-immigration specialists provide support and expertise on thousands of such cases. In addition, BDS is one of three New York Immigrant Family Unity Project (“NYIFUP”) providers and has represented more than 1,500 people in detained deportation proceedings since the inception of the program in 2013. BDS’s immigration practice also represents people in applications for immigration relief, including for T nonimmigrant status, adjustment of status, and naturalization before the United States Citizenship and Immigration Services (“USCIS”), in non-detained removal proceedings in New York’s immigration courts, in petitions for review before the U.S. Circuit Court of Appeals for the Second and Third Circuits, and in writs of mandamus and habeas corpus in U.S. district courts.

I. The Proposed Final Rule Appropriately Recognizes the Variety of Forms Trafficking Can Take, But Can Go Further In Protecting Vulnerable Victims of Trafficking

BDS supports DHS’ clarification of key terms that were defined too narrowly before the publication of the interim rule. In the interim rule, DHS clarified that “involuntary servitude” “encompasses the use of psychological coercion.” See 81 Fed. Reg. 92270-71 (citations and quotations omitted). DHS also clarified that “an individual need not actually perform labor, services, or a commercial sex act to meet the definition of a ‘victim of a severe form of trafficking in person’” so long as they were recruited, harbored, transported, provided, or obtained for the purposes of trafficking. BDS commends USCIS for clarifying these definitions. BDS attorneys have represented vulernable victims of trafficking whose experiences would likely not have met the previous, narrow definitions of these terms but who have been now able to access necessary protections as a result of DHS’s clarification. For example, since the publication of the interim rule, BDS attorneys have obtained T nonimmigrant status for individuals who were held hostage at the border under threat of forced labor or commercial sex acts, but who managed to escape before the traffickers could carry out the threats. Under the previous definition of “involuntary servitude,” the fact that the threats—however serious—were not carried out could have barred these victims from protection.

Before the 2016 interim rule, DHS weighed evidence of victimization unequally depending on its source: evidence provided by law enforcement agencies (“LEA”) (i.e., “primary” evidence) was given greater weight than evidence from other sources. See 81 Fed. Reg. 92271-72. In the interim rule, DHS eliminated this unequal weighing of evidence. DHS clarified that it was adopting an “any credible evidence” standard that did not discriminate based on the source of the evidence of victimization. See id; see also current 8 C.F.R. § 214.11(d)(2)(ii); (f)(1). BDS commends DHS on eliminating this unfair distinction. Since the publication of the interim rule, trafficking victims represented by BDS and others like them—who have often had adverse interactions with LEAs and thus are less likely to report their own victimization—have benefited from the “any credible evidence” standard, which properly recognizes the many ways in which victimization can be recorded. However, the interim rule did not provide adjudicators with guidance as to which types of evidence to consider credible. As such, in practice, some types of evidence may be disregarded. BDS urges DHS to state explicitly that the types of evidence victims are more likely to have available—such as letters from mental health and medical professionals, correspondence with a trafficker, pay stubs, or contracts—are examples of credible evidence that must receive equal weight in the agency’s evaluation of the evidence.

II. The Proposed Final Rule Too Narrowly Defines “Physical Presence on Account of Trafficking”

BDS urges DHS to adopt a broader definition of the statutory term “physical presence on account of trafficking.” Under the Trafficking Victims Protection Act (“TVPA”), applicants must be “physically present” in the United States, its dependencies, or a port of entry “on account of” trafficking to be eligible for T nonimmigrant status. See 8 U.S.C. § 1101(a)(15)(T)(i)(II). The Proposed Final Rule appropriately removes the requirement that the applicant not forfeit an “opportunity to depart” the United States between the end of their trafficking and the beginning of law enforcement involvement, if any, in the matter. See 81 Fed. Reg. 92273. However, DHS continues to interpret the term “on account of” in a way that excludes cases in which there is a lapse of time between a survivor’s trafficking and their coming forward or self- identifying as a trafficking victim. Specifically, the definition in the Proposed Final Rule continues to exclude cases in which vulnerable survivors of trafficking are present in the United States on account of past trafficking, but in which law enforcement has not been involved. Such survivors must make the onerous showing that their “continuing presence in the United States is directly related to the original trafficking in persons.” See current 8 C.F.R. § 214.11(g)(1)(iv).

This restrictive interpretation is not required by the text of the statute and does not further the Trafficking Victims Protection Act (“TVPA”) purpose of “combat[ting] trafficking in persons.” Pub. L. No. 106-386. Instead, it unfarly harms traficking victims who would otherwise be eligible for T nonimmigrant status for a lapse in time between being in a traffficking situation and applying for relief. BDS attorneys work with dozens of survivors of severe forms of trafficking who do not disclose their traumatic trafficking experiences or self-identify as trafficking survivors until speaking with a professional they can come to trust and who is familiar with trauma, trafficking, and similar patterns of victimization. These individuals can show they that are present “on account of” trafficking at the time the trafficking occurs, but DHS’s interpretation of the term to require a direct relationship between their continued presence in the United States and the trafficking itself creates an unncessary barrier that may be difficult for them to overcome. This is especially true—and unfair—for survivors who have experienced long-term physical, emotional, or financial harm as a result of trafficking and may not be able to access an attorney until later or may take time to come forward due to trauma. For example, one individual whom BDS worked with had wages withheld throughout his period of employment and was threatened when he approached his employer over a workplace injury. He did not identify the experience as trafficking until speaking with his attorneys. The current interpretation penalizes him for not identifying that he had been trafficked until after he had addressed the phsyical and financial harms of the trafficking. As such, USCIS should adopt a construction of the physical presence requirement that allows applicants to show that they meet the statutory requirement by being present in the United States “on account of” trafficking when it occurs.

III. The Proposed Final Rule Does Not Protect Vulnerable Victims of Trafficking Facing Imminent Removal

BDS urges DHS to modify the Proposed Final Rule to better protect vulnerable trafficking survivors who are facing imminent removal by staying their removal automatically or, in the alternative, fast-tracking their applications. In the Proposed Final Rule, DHS rightly removes confusing language that appeared to preclude applicants placed on the T visa waitlist from seeking “new means” to protect themselves from deportation. See 81 Fed. Reg. 92286-87; former 8 C.F.R. § 214.11(m)(2). DHS suggested that this change responded to comments urging the agency to “provide protection from removal or a legal means to stay in the United States for this population of applications.” 81 Fed. Reg. 92286. However, simply acknowledging that applicants may seek multiple paths to prevent deportation is insufficient to protect vulnerable survivors of trafficking from undo removal. BDS has represented numerous applicants for T nonimmigrant status facing the imminent execution of a final order of removal. The lack of protection from deportation is particularly harmful to trafficking survivors in this position.

Under the system preserved in the Proposed Final Rule, “the filing of an application for T nonimmigrant status has no effect on DHS authority or discretion to execute a final order of removal.” Current 8 C.F.R. § 214.11(d)(1)(ii). Only after USCIS determines that an application for T nonimmigrant status is “bona fide”—a process that can take many months or even years—will “DHS . . . automatically grant an administrative stay of the final order of removal, deportation or exclusion.”² Id.; see also current 8 C.F.R. § 214.11(e)(3); 8 C.F.R. § 1214.2(b). The lack of protection for applicants awaiting a bona fide determination is at odds with the “right to make [an application] and have [it] fully adjudicated without undue interference.” S.N.C. v. Sessions, 325 F. Supp. 3d 401, 411 (S.D.N.Y. 2018) (granting temporary of stay of removal to an applicant for T nonimmigrant status); see also, e.g., You v. Nielsen, 321 F. Supp. 3d 451, 465 (S.D.N.Y. 2018) (noting that the opportunity to apply for an affirmative benefit is “a mere illusion” without a stay of removal).

BDS therefore urges DHS to exercise its authority to prevent the removal of vulnerable survivors of traffickingby staying removal when an application is deemed to be properly filed. Such a system is well within DHS’ broad statuory authority to stay the execution of a removal order,³ furthers the TVPA’s purpose of protecting trafficking survivors, and prevents a violation of survivors’ right to procedural due process. In the alternative, DHS should create a fast track for providing a bona fide determination for applicants with a final removal order.

BDS relatedly urges DHS to amend the Proposed Final Rule to require Immigration and Customs Enforcement (“ICE”) to join a motion to reopen and terminate removal proceedings for individuals with approved T nonimmigrant status applications. The Proposed Final Rule currently states that ICE “may agree, as a matter of discretion, to join such motion to overcome any applicable time and numerical limitations of 8 C.F.R. §§ 1003.2 and 1003.23.” Current 8 C.F.R. § 214.11(d)(9)(ii). This system unnecessarily exposes T nonimmigrant visa beneficiaries to the threat of ICE enforcement action and detention, creates a possibility for arbitrary inconsistensies within DHS, and wastes the scarce resources of the Executive Office for Immigration Review. Therefore, BDS urges DHS to clarify that ICE must join a motion to reopen and terminate for individuals with approved T nonimmigrant visa applications. Such a requirement would comport with ICE’s own internal guidance for joining motions to reopen for individuals with pending applications for immigration relief.⁴

IV. The Proposed Final Rule Unnecessarily Contstricts DHS’ Broad Statutory Discretion To Waive Grounds Of Inadmissibity For Applicants For T Nonimmigrant Status

BDS urges DHS to modify the Proposed Final Rule to more fully execute Congress’ grant of broad discretion to waive grounds of inadmissibility for applicants for T nonimmigrant status. The statutory provision for a waiver of inadmissibility for T nonimmigrant status applicants is uniquely broad. See 8

U.S.C. § 212(d)(13)(B). Congress authorized DHS to waive any ground of inadmissibility if it considers it to be “in the national interest to do so,” except for national security, international child abduction, and former citizens who renounced citizenship to avoid taxation.⁵ Id.

The Proposed Final Rule improvidently narrows this broad waiver provision by specifying that “USCIS will only exercise favorable discretion in extraordinary circumstances” for violent or dangerous crimes not caused by or incident to the applicant’s victimization. Current 8 C.F.R. § 212.16(b)(2). There is no need for such a targeted and restrictive standard specific to T nonimmigrant visa applicants. It is neither required nor suggested by the statute. Indeed, the “extraordinary circumstances” standard is at odds with BIA’s three-factor test for evaluating requests pursuant to the general (i.e., non-visa-specific) waiver of inadmissibility at 8 U.S.C. § 1182(d)(3)(B). Those factors are the risk of harm to society, the seriousness of prior criminal law violations, and the applicant’s reasons for wishing to enter the United States. See Matter of Hranka, 16 I. & N. Dec. 491, 492 (BIA 1978). Thus, despite their unique vulnerabilities and exposure to the criminal justice system, the Proposed Final Rule paradoxically applies a stricter standard to T nonimmigrant visa applicants. BDS urges DHS to remove this unnecessary and unfair restriction on trafficking survivors and to apply a fairer standard, such as that in Matter of Hranka.

Moreover, BDS also urges DHS to clarify that special solicitude should be given to trafficking survivors requesting waivers of certain grounds of inadmissibility to which they are uniquely susceptible, particularly prostitution⁶ and drug use.⁷ In the Proposed Final Rule, USCIS declined to make such a clarification, noting that “USCIS personnel who adjudicate applications for T nonimmigrant status and waivers of inadmissibility are trained on the various aspects of the dynamics of victimization.” 81 Fed. Reg. 92284-85. While BDS appreciates that USCIS provides trauma-informed training, BDS attorneys have regularly received requests for evidence seeking information on arrests for prostitution despite having made clear that these arrests were related to the trafficking victimization. BDS therefore urges DHS to specify that officers should consider the unique connection between trafficking experiences and prostitution and drug use in adjudicating relevant waivers of inadmissibility and should not issue such requests for additional evidence.

* * *

The Proposed Final Rule appropriately conforms USCIS practice to the unique vulnerabilities that trafficking survivors face. But the rule still unnecessarily restricts trafficking survivors’ ability to access T nonimmigrant status, which Congress created specifically for their benefit and for the purpose of combatting human trafficking. BDS therefore requests that DHS consider its recommendations regarding the relevant evidence for adjudicting applications, the appropriate definition of physical presence, the protection of applicants facing imminent removal, and the breadth of the agency’s autority to waive inadmissibility. These recommendations will ensure that DHS protects the rights and interests of vulnerable survivors of trafficking and fulfills the purpose of the TVPA and subseuqent legislation.

Please do not hesitate to contact us if you have questions regarding our comments. Thank you for your attention and considering our concerns.

Sincerely, Kevin Siegel

Staff Attorney, Immigration Community Action Project

S. Lucas Marquez

Senior Staff Attorney, Civil Rights & Law Reform

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¹ On August 13, 2021, the comment period was extended to September 14, 2021. See 86 Fed. Reg. 44593.

² The Proposed Final Rule acknowledges that applicants “may request an administrative stay of removal pursuant to 8 C.F.R. § 241.6(a).” Current 8 C.F.R. § 214.11(d)(1)(ii). That provision of law, however, leaves the granting of a stay in the complete discretion of the agency and provides no guidance for factoring the unique vulnerabilities that survivors of trafficking experience or the TVPA’s goal of providing them protection.

³ See 8 U.S.C. § 1231(c)(2).

⁴ See Memorandum from John D. Tasviña, Principal Legal Advisor, ICE, for All OPLA Attorneys, Re: Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities.

⁵ Applicants for T nonimmigrant status may also apply for the general waiver of certain grounds of inadmissibility provided for at 8 U.S.C. § 1182(d)(3)(A).

⁶ See 8 U.S.C. § 1182(a)(2)(D) (prostitution).

⁷ See 8 U.S.C. § 1182(a)(1)(A)(iv) (drug abuse or addiction). As a health-related ground, the drug use inadmissibility category is not subject to the requirement that the applicant show a connection to the trafficking experience. See current 8 C.F.R. § 212.16(b)(2).