Slavery and Its Definition
Jean Allain and Kevin Bales
The Bellagio–Harvard Guidelines on the Legal Parameters of Slavery
The Scourge of Slavery: The Contemporary Reality of an International Human Rights Challenge
David K. Androff
Absolving the State: The Trafficking–Slavery Metaphor
Julia O’Connell Davidson
Rethinking Trafficking: Patriarchy, Poverty, and Private Wrongs in India
Alison Brysk and Aditee Maskey
Children Trafficked to the United States: Myths and Realities
Elzbieta M. Gozdziak
Debt-Bondage Slavery in India
The Many Faces of Slavery: The Example of Domestic Work
Child Domestic Workers: Protected Persons or Modern-Day Slaves?
Forcing Children to Bear Arms: A Contemporary Form of Slavery
Michael G. Wessells
Abused Migrant Women in the United States: Progress, Challenges and Recommendations
Gabriela Wasileski and Mark J. Miller
Repairing Past Injustice: Remarks on the Politics of Reparations for Slavery in the United States
Libya: The Road to Regime Change
Volume 14 ● Number 2 ● Summer/Autumn 2012—Slavery Today
Abused Migrant Women in the United States: Progress, Challenges and Recommendations
Immigrants are more than simply a homogenous community with similar problems and concerns. Even though female immigrants have become increasingly prominent in international migration, social science research has not adequately addressed the role of women in migration, especially those who are undocumented immigrants. The consequences of international migration for women become increasingly complex when their experiences of interpersonal violence correlate with undocumented migration status.
This essay provides an overview of human trafficking and the special problem of undocumented battered women. Second, it discusses the evolution of United States policy and its strengths and shortcomings. A final section offers recommendations for further policy reforms. By examining the unique needs of undocumented immigrant battered women within a migration policy framework, this essay attempts to place immigrant battered women at the centre of a social discourse.
The Vulnerability of Female Migrants
In broad terms, there is a growing public awareness that immigrant women are like any other victims of crime that need assistance, protection, and access to justice. Yet, the prevailing political discourse across the United States sees undocumented immigrants as a problem requiring a restrictive response. At the policy level, a variety of legal measures has been formulated to regulate who can migrate and under what conditions, and to specify what rights immigrants possess in their new homeland. Evolving perceptions that see undocumented immigrants as a problem for national security and the economy have triggered the creation of migration policies which profoundly influence the treatment of undocumented immigrant battered women.
Enslaving people and transporting them across borders dates back to antiquity. In the nineteenth and twentieth centuries, even after the British-led anti-slavery campaign, concerns persisted about the abuse of migrants, and particularly about female and child migrants. These concerns gave rise to international agreements to prevent and penalise such abuses. The United Nations then inherited this legacy and has produced an array of instruments aimed at facilitating international efforts to curb abuses of migrants. Such endeavours at the global level have been echoed in regional forums and at the level of individual states.
These efforts intensified in the post–Cold War era when human trafficking emerged as an important security-policy concern. Human trafficking, which is not necessarily international in nature, came to be viewed as a significant, indeed growing, component of illegal migration. What demarcates trafficking from illegal migration in general is the harm done to migrants. While it is generally up to courts or legal processes to determine whether a specific case constitutes an instance of human trafficking, broadly speaking, human trafficking involves international migration that results in the purposive exploitation of migrants.
In response to pressure to address the humanitarian protection of those who are victims of crime, the United States provides legal remedies for adjusting the migration status of undocumented battered immigrant women to legal status. However, the process for such adjustment is not a politically neutral practice. It is regulated under migration policy statutes, as opposed to social policies. Because the motives underlying migration policies are to control immigrants, the needs of undocumented immigrant battered women might not be adequately addressed.1 While social policies are created to help those in need, undocumented immigrant battered women must comply with migration policies before they can receive social assistance. Consequently, immigrant battered women are often viewed first as aliens and only second as a victims of violence, and as such they can be subjected to legal penalties, such as arrest and/or deportation for violation of migration law.2
In the United States, responding to male violence against women has been an important part of national policy for the last three decades. Examples of the importance accorded to the issue include the Violence against Women Act, the development of community-based services for victims, changes in professional responses to victims, and the creation of a variety of social-service programmes for the victims of interpersonal violence. These changes were embedded in broader policy and service arenas and extended into programmes that addressed the issue of interpersonal violence in immigrant communities.
While interpersonal violence has not developed as an exclusively immigrant issue in the United States, the larger framework for domestic violence has improved access to help for undocumented immigrant battered women. The United States enacted comprehensive public policy and financial resources to promote anti-trafficking efforts and to tackle the problem of violence against women.3 In particular, the Victims of Trafficking and Violence Protection Act of 2000 created two new non-immigrant visa categories giving legal status to victims of certain crimes: the “T” visa provides legal status for up to five thousand victims of trafficking and the “U” visa provides legal status for up to ten thousand victims of interpersonal violence, rape, trafficking, involuntary servitude, sexual assault, torture, and other offences. Both of the new visas provide temporary (non-immigrant) status and work authorisation to the victims and certain members of their families, and opportunities to obtain permanent residency status (green cards) after some period of time and under strictly defined conditions.4
Even though the United States experiences tensions about undocumented immigrants, especially in the current time of economic crisis, undocumented immigrant battered women have gained access to some service providers without recognition of their migration status. In the United States, providing social services is under the purview of community and non-government organisations, not just government entities. For example, while shelters for battered women may use government grants, they are also financially independent organisations that receive private funding. These non-government organisations are highly professional entities that advocate at state and federal levels for political equality, improvement in services, and legal remedies for undocumented immigrant battered women. Once such women are accommodated in shelters or seek help without need of accommodation, they are provided with a variety of service options and are also assisted in the legal process of adjusting their migration status through available channels such as the U-visa.
In addition, immigrants residing unlawfully in the United States can access civil legal remedies. For example, undocumented immigrants can file for protection orders against their abusers, seek custody of their children, and have access to civil courts. Like social service providers, civil courts do not ask about clients’ migration status prior to legal proceedings. Therefore, undocumented women who do not engage in criminal activity should not be at risk of apprehension and deportation by approaching civil courts. When guided by knowledgeable social service providers, undocumented immigrant battered women can be well served by civil courts on issues of child custody or protection orders against their abusers.
However, because of the current weakness of the US economy and the significant funding put into law enforcement, these non-government and community organisations have experienced financial difficulties. Because many organisations receive government resources, budget constraints at the state level have limited the amount of services they can provide. Without the ability to hire additional legal-aid attorneys to keep pace with the growing numbers of undocumented immigrant battered women, the existing infrastructure is spread increasingly thin. The extensive amount of legal work required to process applications to adjust migration status complicates the ability of legal-service providers to help such women.
In response to the threat of terrorism after 11 September 2001, the United States and many European countries experienced a shift in political discourse about undocumented immigrants. A more regulatory, security-conscious framework was applied to immigrants. Greater emphasis was placed on the control of human movement through the securing of state borders and increased attention was given to connections between immigrants, crime, and national security. The current worldwide economic crisis only added fuel to already hostile public attitudes towards immigrants in post–11 September America and Europe. It is not surprising that anti-immigrant sentiment, societal fear and anxiety grow when economic conditions in host countries deteriorate. Such factors underlie the policies that have cracked down on immigration and in turn can obscure the situation and conditions of immigrants.
Because access to legal remedies for undocumented immigrant battered women depends upon personnel within the legal system, including police officers, such women are vulnerable to the prejudices of individuals and their biased interpretation of the law. Police officers can be influenced in their interaction with undocumented immigrant battered women by their personal attitudes and local politics. Their gender-biased and anti-immigrant response can be particularly harmful when they are called to domestic-violence incidents in which victims defend themselves against their abusers. If the police officer labels the victim as an offender, she can be arrested and deported as a result of her migration status.
Thus, the migration status of undocumented immigrant battered women can result in legal retaliation if they seek help they are eligible for through the available legal channels. Adjusting migration status through the U-visa process is an important way of empowering these women: through work authorisation, it removes them from their dependence on their abusers. In addition, adjusting migration status protects victims of intimate violence from deportation. It increases their social and economic mobility.
However, legal remedies such as the U-visa for undocumented immigrant victims of crime do not necessarily protect all women in this category from their batterers or from the legal consequences of violating migration law. A crucial legal protection such as U-visas can often be overlooked by law-enforcement agencies, especially when officials carry out crackdowns or operations against undocumented immigrants. In addition, the U-visas are confined to crime victims who are officially recognised as such by the criminal justice authorities. Therefore, undocumented immigrant battered women who do not approach the law-enforcement agencies, do not report a crime, or who enter the criminal justice system as offenders, lack the eligibility necessary for U-visa relief and face the possibility of deportation from the United States.
The process used to adjust migration status through U-visas is not always quick and straightforward, even for those undocumented women who are recognised by the authorities as victims of crime.5 Besides gaining official recognition as a crime victim, undocumented women must meet the legal requirements for U-visa relief: suffering so-called “substantial harm” and being helpful to the criminal justice authorities’ investigation and prosecution of the offenders. Vague wording of the law often creates hurdles for undocumented women and increases the discretionary power of law-enforcement officials. Police in particular can be reluctant to certify that a woman is a crime victim and has assisted in the prosecution of an offender because of their subjective (and incorrect) viewing of the certification process as an issue of migration law.
The Right to Work
Another major obstacle for undocumented immigrant battered women is that a U-visa does not grant the right to work before migration status has been adjusted. Since many immigrant women lack the necessary work permits until U-visas are granted, which can take between six and eighteen months, they are forced to work in the informal economy, risking arrest and deportation for violation of U-visa conditions. However, the lack of access to legal employment is accompanied by the lack of access to federal public benefits that are tied to lawful residency status. In certain states, undocumented battered women are eligible for some benefits, but the current economic crisis and severe budget cuts have eliminated even this possibility of financial relief in several instances. These factors influence whether immigrant battered women decide to leave their batterers. Even if they find the strength and courage to leave their batterers and seek justice, the lengthy U-visa process and lack of work authorisation often discourage victims from persisting and hasten their return to their batterers or to their native country.
Consequently, the only option for the relief of battered women until their migration status is adjusted becomes social services offered through non-governmental organisations (NGOs). The social assistance provided by NGOs and governmental bodies in the United States is well developed and organised. They provide help to any person who seeks it, regardless of migration status, and are committed to assist even undocumented battered women who do not report the crime to the authorities. For example, social service workers can assist undocumented women with a petition for a protection order against abusers, with child custody paperwork, or with the receipt of social welfare benefits that might be available for their US-born children.
Nevertheless, even though these grass-root organisations in the United States are strong and widely recognised, they still struggle for financial resources. In many instances, they are required to limit shelter accommodation for undocumented battered women to no more than sixty days. However, the process for adjusting migration status takes at least three to four months, so battered women have to change shelter residences or find alternative housing, which is often financially impossible. Only a few shelters can accommodate women for longer periods of time.
The Emphasis on Fighting Crime
Undocumented battered women and the migration lawyers and social service providers who help them face many obstacles that are embedded in migration legal practices. Even though U-visas were enacted to provide legal relief for undocumented immigrant victims of crime, the U-visa process has sometimes instead become a mechanism for law-enforcement agencies to pursue their mandate to fight crime.6 Undocumented immigrant victims of crime are empowered only after legal migration status is granted. Until then, they can remain helpless victims of a complex social and legal system. The vulnerability of undocumented battered women created by the U-visa process indicates that additional steps need to be taken to achieve more effectively the goals of the U-visa and to improve the security and safety of crime victims.
By placing the emphasis on fighting crime rather than on the needs of victims, migration policies also control eligibility for the adjustment of migration status. The discretionary power these policies grant to police officers, who must sign certifications, further complicates the U-visa process for undocumented battered women. Police signatures that attest to the abuse are a crucial part of the application for adjusting migration status for battered women. Recent field research indicates that the reluctance of individual police officers to sign such forms can have serious consequences for the victims. Migration lawyers and social service providers feel that individual police officers are reluctant to sign such forms because of their own personal biases or local political negativity towards undocumented immigrants, in addition to their lack of knowledge about U-visa relief and its purposes.
While the United States has an existing network of social services to assist undocumented immigrant battered women, the legal language of migration policies focuses mostly on immigrant control rather than on the protection of victims. The legal language of migration policies and their practical application often override any good intentions of social service providers or migration lawyers to help and protect undocumented immigrant battered women. The consequences of migration policies can often extend beyond simply the control of migration movements. The legal text in migration policies provides no civil and social rights to undocumented battered women until their migration status is adjusted. Through the very structure of migration policies, women can be forced to endure violence. Therefore, undocumented battered women suffer not just from a lack of civil and social rights; they also run other risks. Migration policies limit their ability to protect themselves from exploitation and abuse by batterers and in the workplace. In many instances, because migration policy treats undocumented battered women primarily as immigrants who have broken the law, it often ignores the fact that the women are also victims of crime who need assistance and protection.
Towards Further US Policy Reforms
Many view US policy regarding undocumented migrant women as exemplary and fit for emulation everywhere. There is no doubt that the United States has an admirable record of reform and leadership in this domain. But further progress is imperative.
The suggestion that an increase in the number of immigrants, particularly those without documentation, has a negative impact on the host country is not a new subject of social discourse. Public ambivalence towards immigrants, disputes over their contribution to, and putative adverse effects upon, the host society and economy have resulted in the growing politicisation of migration policies. In addition, the number and diversity of immigrants have become a catalyst for population change. This growth, in turn, has increased pressure for immediate government action to control immigration.
Many American politicians, including President Obama, have described US migration policy as a broken system. However, this position reflects an insufficiently nuanced view of the effectiveness of migration policies, particularly as regards undocumented immigrant battered women. In some cases involving such women, immigration policy works successfully. The American legal system recognises the special problems of these women and their vulnerability to interpersonal violence.
The arguments that migration affects female immigrants differently from their male counterparts, or that the vulnerability of women to intimate violence and abuse can increase as a result of their illegal migration status, are common among scholars. However, despite these concerns in academia, migration policies have framed interpersonal violence against migrant women as merely a migration issue. In the United States, the application of available legal standards and their success depend on the migration status of the abused.
Migration policies are intended to protect the host country from unwanted immigrants and to control the movement of migrants through family reunion policies, workers’ programmes, or a refugee and asylum-seekers’ programme. Framing intimate violence against undocumented immigrant women within this larger migration-control strategy limits victims’ possibilities for gaining legal remedies and relief. The purposes of migration-control strategies are so tightly confined that little or no consideration is given to the quality of life of undocumented immigrant battered women. Instead, these policies often constrain women’s options, leaving them unprotected in violent household situations.
Temporary Work Authorisation
By expanding the scope and purpose of migration policies beyond merely controlling immigrant movements to include the temporary needs of undocumented battered women, both migration-control and quality-of-life concerns could be served. A simple measure, such as providing temporary work authorisation for undocumented battered women until the adjustment of their migration status is denied or granted, could dramatically improve their health and safety. Their lack of access to services and benefits would thus be removed from the equation because they would be able to support themselves by legitimate means, such as legally sanctioned work. Such a measure as temporary work authorisation would therefore serve multiple social functions. It would assist women in their transition into the formal economy as employees and tax-payers. Their new financial independence would reduce battered women’s vulnerability to further violence. Their income from legitimate work would also alleviate pressure on already burdened social services.
Improved Police Training
Adequate police training in the U-visa process, especially for purposes of certification, could greatly enhance the ability of undocumented immigrant battered women to escape from interpersonal violence. The sexist and anti-immigrant attitudes of individual police officers can bias them against identifying such women as victims who have suffered “substantial” harm and were helpful in investigation and prosecution. Sensitivity training in the special needs of undocumented battered women could significantly improve police responsiveness and reduce the influence of anti-immigrant attitudes and gender bias.
Female-interest grassroots organisations in the United States have played an important role in improving services and legal remedies for undocumented immigrant battered women. Such women are no longer an invisible segment of society. Instead, through the work of NGOs and advocacy groups, these women and their difficulties have been brought into the wider discussion of migration policy. Constructive reform of complex and highly political public policies is never easy, but remains a possibility. Constructive change in democratic settings often comes at a glacial pace.
In clear cases of trafficking, battered immigrant women receive excellent protection from the federal authorities in the United States. Most battered immigrant women, however, are not trafficked. Many are smuggled into the United States and, if they come to be battered, possess no special recourse unless they are recognised by federal or local law-enforcement authorities as victims of crime. Short of the reforms advocated above, such women lack other options.
2. Gabriela Wasileski, “Not So Obscure a Challenge: Battered Female Migrants and Public Policies in the United States and Greece” (Ph.D. diss., University of Delaware, summer 2011).
3. Alison Brysk, “Sex as Slavery? Understanding Private Wrongs”, Human Rights Review 12, no. 3 (2011), pp. 259–70.
4. Miller and Wasileski, “An Underappreciated Dimension of Human Trafficking”.
5. Wasileski, “Not So Obscure a Challenge”.
6. Jamie R. Abrams, “The Dual Purposes of the U Visa Thwarted in a Legislative Duel”, Saint Louis University Public Law Review 29, no. 2 (2010), pp. 373–414.