New York Times: “Survivors of Smuggling Trip Could Gain Entry to U.S. by Becoming Witnesses”

by Joseph McKeown

Twenty-nine immigrants who were rescued from an overheated tractor-trailer last week in what officials believe was a tragically botched human trafficking or smuggling operation may be given an opportunity to stay in the US under a T or U visa. The immigrants suffered without water in over 100 degree temperatures, and eight immigrants tragically died inside the trailer, with two dying later. Some surviving immigrants fled, and the remaining immigrants were taken to local hospitals to be treated for critical conditions including heat stroke and exhaustion. James M. Bradley, the driver of the truck, is currently in jail facing smuggling charges while local and federal authorities investigate with hopes of reaching higher levels of smuggling rings that would lead to more arrests. 

Immigration officials have reported that at least twelve immigrants remain hospitalized, one escaped after being released from the hospital, and at least thirteen other immigrants have been released from the hospital but are now being detained. Although these detained immigrants could face deportation, authorities are now considering designating these survivors as “material witnesses.” In exchange for their testimony providing descriptive information about those who brought them to the US, the surviving immigrants can be offered protection from deportation through programs designed to help prosecutors build cases. 

The T visa is a special status provided for foreign nationals who have been victims of human trafficking. Human trafficking refers to the movement of people across borders, usually for the purposes of forced labor or sexual exploitation. For foreign nationals who have been trafficked into the US, the T status allows them (and their spouse and children) to remain in the US with work authorization and, after three years, apply for permanent residence (i.e., a Green Card).

In order to qualify, foreign nationals must show that they are/were a victim of a severe form of human trafficking (sex or labor trafficking), be physically present in the US (or American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry) on account of trafficking, comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking, and show that if they were removed from the US, they would suffer extreme hardship involving severe and unusual harm. The T visa status is limited—there are only 5000 such visas allotted each year.

Similar to a T visa, the U visa category is designed for victims of certain criminal activity, including rape, torture, trafficking, kidnapping, prostitution, domestic violence, involuntary servitude, extortion, felonious assault, sexual assault, manslaughter, and murder. To qualify, foreign nationals must show that they have suffered “substantial physical or mental abuse” as a result of falling victim to one of the specified crimes. They must also demonstrate that they possess information relating to the crimes they have become victims to and that they have been helpful or are likely to be helpful to law enforcement or prosecutors in investigating or prosecuting the criminal activity. The crimes must have occurred in the US and must have violated US state or federal laws. Foreign nationals who obtain U status can become eligible to apply for a Green Card after three years.

Additionally, many grounds of inadmissibility that typically apply to Green Card applications do not apply to U status applications. Congress has authorized a maximum of 10,000 U visas to be granted a year. Despite the best intentions of the T and U visas, immigration advocates note the visa requirements can be burdensome or difficult to meet, and that government agencies are sometimes uncooperative in assisting victims or even treat the victims as criminals. 

While advocates are hoping that the surviving immigrants currently held in detention will be offered government protection, federal officials have said that no decision will be made anytime soon. “Our focus right now is the criminal investigation,” Shane Folden, special agent in charge of Homeland Security investigations in San Antonio, tells the New York Times. Authorities are currently working to determine whether the immigrants were smuggled in the country willingly or trafficked against their will or under false pretenses.

Trafficking victims are potentially eligible for various benefits such as financial assistance, housing, and psychological services; however, individuals who are smuggled are viewed much differently, since they have committed a crime by entering into contracts with smugglers, John Torres, a former federal immigration agent, tells the New York Times. Torres believes interviews with the detained immigrants are currently being conducted in order to make this determination. 

Even if these immigrants qualify for a T or U visa, obtaining a letter of verification certifying the importance of the testimony from either the Justice Department or immigration authorities may prove difficult. Agencies often disagree if such a letter should even be provided. Michael J. Wynne, a former federal prosecutor in South Texas, says some of the most contentious fights he's witnessed have been between government agencies over witnesses, since prosecutors usually want to keep witnesses in the US for as long as possible, but Homeland Security officials don't want it to appear as if they are rewarding individuals for breaking the law.

Protection against deportation also carries risks for both immigrant witnesses and prosecutors. If immigrant victims testify against their smugglers, the victims or their families may face retaliation. Prosecutors, on the other hand, run the risk of having this protection backfire on them. Defense attorneys in smuggling cases have the opportunity to use it against immigrants during cross-examinations at trial. Torres says: “A defense attorney could make the argument that, ‘Hey, they are buying you food, buying you clothes–aren’t you just making this up so that you get to stay here?” The investigation will takes months if not years, and the status of the immigrants is yet to be determined. Michael McCrum, a San Antonio attorney and former federal prosecutor, is currently representing thirteen detained immigrants and wants to make sure they are “adequately taken care of, and not just political footballs in our current climate of immigration angst.”