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Legal Remedies for the Right to Asylum forQualifying Victims of Human Trafficking:A Comparative Analysis between United States,Mexico and the Dominican RepublicIvanna Molina PeñaSTUDENT WORKING PAPERUNIVERSITY of NOTRE DAME
THE CENTER for CIVIL and HUMAN RIGHTSThis paper was prepared for a Spring 2017 Directed Reading Courseat Notre Dame Law School, co-taught by Profs. Christine Cervenakand Alexandra Levy.The author remains responsible for the substantive content.Permission is granted to make digital or hard copies of part or all ofthis work for personal or classroom use, provided that copies are notdistributed for profit or commercial advantage and that copies bearthis notice and a full citation on the first page. The proper form forciting papers in this series is:Author, “Title” (The Center for Civil and Human Rights, Year). 2017 Ivanna Molina PeñaNotre Dame Law SchoolNotre Dame, Indiana 46556USA
Ivanna Molina PeñaDirected Reading: Legal Remedies for Victims of Human TraffickingProfessors: Christine Cervenak and Alexandra LevyLegal Remedies for the Right to Asylum for Qualifying Victims of Human Trafficking: AComparative Analysis between United States, Mexico and the Dominican RepublicIntroductionTrafficking in persons has a primary objective which is the gain of profit through theexploitation of human beings. This practice is prohibited by international law and criminalizedin the national legislation of a growing number of States. Although the range of acts fallingwithin the definition of trafficking varies among national jurisdictions, States have aresponsibility to combat trafficking and to protect and assist victims of trafficking. 1Many victims of human trafficking are profiled and selected by their traffickers becauseof their nationality, race, religion, membership in a particular social group and sometimes theirpolitical opinion. Traffickers know that there are circumstances of exclusion or discriminationbased on one or more of these grounds, that render persons vulnerable, sometimes leaving themwithout the protection of their states. Traffickers may capitalize on these circumstances andprey on their victims. 2When this is the case, and depending on the particular circumstances, the 19511UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 7: The Applicationof Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims ofTrafficking and Persons At Risk of Being Trafficked, 7 April 2006, HCR/GIP/06/07, par. 1. Available d., par. 311
Convention Relating to the Status of Refugees (herein 1951 Convention) which guarantees thatpersons that are being persecuted by one or more of the five grounds established in the 1951Convention, 3 comes into play, creating an intersection between asylum and human trafficking.Not all victims or potential victims of trafficking fall within the scope of the refugeedefinition. To be recognized as a refugee, all elements of the refugee definition have to besatisfied. But it is very important that a very careful and individual analysis of each case iscarried out by the competent Courts or institutions to be able to determine if the victim oftrafficking qualifies or not as a refugee, and to guarantee that the legal remedies set forth by theStates for the right to asylum, are effectively provided to the qualifying victims of trafficking.The issue of human trafficking has been present around the world for a very long time.On November 2000, member States of the United Nations, convinced that the United NationsConvention against Transnational Organized Crime (herein Palermo Convention) wouldconstitute an effective tool for international cooperation in combating criminal activities asmoney-laundering, corruption, among others, adopted the Convention, which came into forcelater in 2003. 4On the same date, States declared that in the absence of a universal instrument thataddresses all aspects of trafficking in persons, persons who are vulnerable to traffickingwouldn’t be sufficiently protected, 5 and adopted the Protocol to Prevent, Suppress and Punish3The five grounds are: religion, race, nationality, political opinion or membership of a particular social group.Convention and Protocol Relating to the Status of Refugees. Available at http://www.unhcr.org/en-us/3b66c2aa104United Nations Convention against Transnational Organized Crime and the Protocols Thereto, available athttps://www.unodc.org/unodc/treaties/CTOC/5UN General Assembly, United Nations Convention against Transnational Organized Crime, 15 November n/TOCebook-e.pdf2
Trafficking in Persons Especially Women and Children (herein Palermo Protocol),supplementing the United Nations Convention against Transnational Organized Crime. 6Taking these basic concepts into consideration, this paper argues that victims of humantrafficking that have been trafficked across international borders, have the right to apply forasylum. It further contends that their claim has to be carefully analyzed, taking intoconsideration whether any of the grounds established in the 1951 Convention were taken intoaccount in the profiling and selection process by the traffickers, if the victim was persecuted orhas a well-grounded fear of persecution for any of the mentioned grounds, and if the State ofthe country of origin or of habitual residence is unable or unwilling to protect the victim.If these criteria are met, Courts or institutions in charge of reviewing asylum claimshave to grant asylum to victims of human trafficking or otherwise the State would be violatingthe victim’s rights and its international obligations on refugee and human rights law. Hence,the legal remedies provided by States for the right to asylum, for these specific type of victims,would be rendered void.Throughout this paper it is assessed whether the legal remedies adopted in law andpractice in the United States, Mexico and the Dominican Republic are guaranteeing thatqualifying victims of human trafficking enjoy their right to asylum. This research focuses onthese three particular countries as a way to analyze this issue in the region, taking intoconsideration that they have different contexts, problematics, institutional capacities, and legal6The purposes of the Palermo Protocol are (a) to prevent and combat trafficking in persons, paying particularattention to women and children; (b) to protect and assist the victims of such trafficking, with full respect for theirhuman rights; and (c) to promote cooperation among States Parties in order to meet those objectives. UN GeneralAssembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, art.2. Available at: http://www.refworld.org/docid/4720706c0.html.3
frameworks, which allows to understand the different ways in which legal remedies for theright to asylum of qualifying victims have been dealt with in the region.For these purposes, the first section of this paper reviews the international frameworkon human trafficking to provide a better understanding of what constitutes human traffickingand what type of remedies have been agreed by the international community in the PalermoProtocol. The second section reviews the local legislation that has been adopted in the UnitedStates, Mexico and Dominican Republic in terms of human trafficking. The third sectionexplores the international framework in asylum issues, carefully reviewing the United NationsHigh Commissioner for Refugees (herein UNHCR) position on international protection relatingto the status of refugees to victims of trafficking and persons at risk of being trafficked, whichserves as the basis supporting the thesis of this paper. Furthermore, section four explores thelocal legislation and case law that has been adopted by the mentioned countries in asylumissues, to demonstrate that in some cases those in charge of applying the 1951 Convention inthe domestic jurisdiction are denying the right to asylum to victims of human traffickingbecause of an overly-narrow interpretation of the grounds set forth in the 1951 Convention,specially the ground of membership of a particular social group. Finally, section five providessome conclusions and recommendations for better ensuring that victims of human traffickingenjoy legal remedies in issues of asylum.4
I.International Framework on Human TraffickingThe Palermo Convention entered into force in September 29th 2000. 7 The United States ofAmerica ratified it on November 3rd 2005, 8 Mexico on March 4th 2003, 9 and the DominicanRepublic ratified it on October 26th 2006. 10 On December 25th 2003 and less than 3 monthsafter the Palermo Convention, the Palermo Protocol entered into force. In November 3rd 2005it was ratified by the United States, on March 4th 2003 by Mexico, and on February 5th 2008 bythe Dominican Republic. 11 Its content is crucial, given the fact that it establishes the legalremedies that should be available for victims of human trafficking.First of all, the Protocol defines trafficking in persons as “the recruitment, transportation,transfer, harbouring or receipt of persons, by means of the threat or use of force or other formsof coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability or ofthe giving or receiving of payments or benefits to achieve the consent of a person having controlover another person, for the purpose of exploitation. Exploitation shall include, at a minimum,the exploitation of the prostitution of others or other forms of sexual exploitation, forced labouror services, slavery or practices similar to slavery, servitude or the removal of organs”.127This Convention was adopted to promote cooperation and to prevent and combat transnational organized crimemore effectively (Art. 1). UN Treaty Collection, United Nations Convention against Transnational /treaties.un.org/pages/ViewDetails.aspx?src TREATY&mtdsg no XVIII-12&chapter 18&clang en.8The United States ratified the treaty with some reservations that are not relevant for the present research. UNTreaty Collection, United Nations Convention against Transnational Organized Crime, Status of ViewDetails.aspx?src TREATY&mtdsg no XVIII12&chapter 18&clang en.9Id. Mexico ratified the treaty with some reservations that are not relevant for the present research.10Id. No reservations were made.11UN Treaty Collection, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women andChildren, supplementing the United Nations Convention against Transnational Organized Crime, Status ofTreaties, available at https://treaties.un.org/pages/ViewDetails.aspx?src TREATY&mtdsg no XVIII-12a&chapter 18&clang en12UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Womenand Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15November 2000, art. 3(a). Available at: http://www.refworld.org/docid/4720706c0.html.5
Furthermore, it establishes certain protections for victims of human trafficking, forexample, to the extent possible under its domestic law, States shall protect the privacy andidentity of the victims, including making the proceedings related to the specific caseconfidential. 13 States shall also guarantee that information on relevant court and administrativeproceedings is provided to the victims, 14 and that they receive assistance to enable their viewsand concerns to be presented and considered at appropriate stages of criminal proceedingsagainst offenders. 15Furthermore, it establishes that States shall consider implementing measures to provide forthe physical, psychological and social recovery of victims of trafficking in persons, includingin appropriate cases, in cooperation with non-governmental organizations, other relevantorganizations and other elements of civil society, 16 and in particular, the provision ofappropriate housing 17, counseling and information in a language that the victim is able tounderstand, 18 medical, psychological and material assistance 19, employment, educational andtraining opportunities. 20 Physical safety has to be provided for victims while they are withinthe country’s territory21 and each State party shall ensure that its domestic legal system containsmeasures that offer victims of trafficking in persons the possibility of obtaining compensation. 22The Protocol also establishes that States parties shall consider adopting legislative or otherappropriate measures that permit victims of trafficking in persons to remain in its territory,13Id, art. 6Id, art. 6(a)15Id., art. 6 (b)16Id., art. 6.317Id., art. 6.3 (a)18Id., art. 6.3 (b)19Id., art. 6.3 (c)20Id., art. 6.3 (d)21Id., art 6.522Id., art. 6.6146
temporarily or permanently, in appropriate cases. 23On the other hand, when a State Party returns a victim of trafficking in persons, such returnshall be with due regard for the safety of that person and for the status of any legal proceedingsrelated to the fact that the person is a victim of trafficking and shall preferably be voluntary. 24This is an important provision that should ensure that States don’t repatriate victims of humantrafficking that, for example, have submitted an asylum claim before the competent authoritiesuntil the claim is resolved, and even after that, if the person didn’t qualify as a refugee and theclaim is rejected because the criteria was not met, States have to carefully consider if thevictim’s safety could be at risk in case of refoulment and, in such case, abstain from carryingout the repatriation.All these remedies, should be available to victims of human trafficking seeking asylumduring the length of the procedure and after the claim has been resolved, if applicable. The factthat victims put themselves in the position of asylum seekers, doesn’t eliminate the exploitationthat they have been through nor cancels their status as a victim of human trafficking, henceentitled to those provisions set forth in the Protocol.As a result of these obligations contracted by the States, United States, Mexico and theDominican Republic, through different legislations, have adopted the Protocol’s provisions intheir domestic laws.2324Id., art. 7Id., art. 8.27
II.Local legislation in issues of Human TraffickingUnited StatesThe United States is an important country of destination for trafficking of human beings.According to the United Nations Office on Drugs and Crime (herein UNODC) from 2013 to2014, 2,975 international victims were identified as being trafficked from abroad and identifieddomestic victims amounted to 2,306. 25 The international victims came from different countriesincluding Honduras, Guatemala, El Salvador, Mexico, Central America and the Caribbean,Philippines, Thailand, and others. 26In attention to the problem that trafficking in persons creates, most importantly for thevictims, the Trafficking Victims Protection Act of 2000 (herein TVPA or Act) was enacted bythe Congress of the United States in October 28th 2000. 27 The TVPA makes a distinctionbetween different types of human trafficking. First it talks about “severe forms of trafficking”defining it as the recruitment, harboring, transportation, provision, or obtaining of a person forlabor or services, through the use of force, fraud, or coercion for the purpose of subjection toinvoluntary servitude, peonage, debt bondage, or slavery. 28 In this definition it also includessex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or inwhich the person induced to perform such act has not attained 18 years of age. 29On the other hand, it defines “sex trafficking” as the recruitment, harboring,transportation, provision, or obtaining of a person for the purpose of a commercial sex act,25UN Office for Drugs and Crime (UNODC), Country Profiles 2017, North America, available /glotip/Glotip16 Country profile North America.pdf26Id.27This Act recognizes that traffickers primarily target women and girls, who are disproportionately affected byeconomic marginalization, the lack of access to education, chronic unemployment and discrimination in theircountries of origin. Trafficking Victims Protection Act of 2000, Sec 102 (4), available athttps://www.state.gov/j/tip/laws/61124.htm28Id., Sec 103 (8) B29Id., Sec 103 (8) A8
without taking into consideration elements of coercion. 30 Unlike for victims of “severe formsof trafficking”, no assistance is provided for victims of “sex trafficking”.The Act defines coercion as threats of serious harm to or physical restraint against anyperson, any scheme, plan, or pattern intended to cause a person to believe that failure to performan act would result in serious harm to or physical restraint against any person; or the abuse orthreatened abuse of the legal process. 31 In this definition there are certain aspects that are notincluded in relation with the definition established in the Palermo Protocol, for example, theAct doesn’t include removal of organs as exploitation.The Act establishes that victims of severe forms of trafficking shall not be detained infacilities inappropriate for their status as victims, 32 should receive medical care, 33 and shouldbe provided protection in case there are any concerns for the victim’s safety 34 andconfidentiality of the information of the victim and her or his relatives. Furthermore, it providesthat victims of severe forms of trafficking shall have access to information about their rightsand translation services. 35In the TVPA, the provision of housing, employment, education nor trainingopportunities is specifically provided. Although the Palermo Protocol establishes that statesshall consider implementing these remedies for the victims, meaning that is not mandatory,they are very important for the victim’s recovery and sense of safety during her or his stay inthe United States. Moreover, the Trafficking Victims Protection Act provides victims of human30Id., Sec 103 (9)Id., Sec 103 (2)32Id., Sec 107 (c)(1)(A)33Id., Sec 107 (c)(1)(B)34Id., Sec 107 (c)(1)(C)35Id., Sec 107 (c)(2)319
trafficking with a special type of visa: the “T” Visa Nonimmigrants. 36This visa is granted to victims of human trafficking that are in the US territory andwilling to comply with any reasonable request from a law enforcement agency for assistance inthe investigation or prosecution of human trafficking, and that demonstrates that she or hewould suffer extreme hardship involving unusual and severe harm if removed from the US. 37Wendy Chapkis once stated that this provision was designed not so much to protect the victimbut to assist prosecutors in closing down trafficking networks. 38 More recently, the TVPA wasamended to include certain exceptions to the requirement of cooperating with authorities. It hasbeen established that victims under the age of 18 at the time of the victimization, or unable tocooperate with a law enforcement request due to physical or psychological trauma, may qualifyfor the T nonimmigrant visa without having to assist in investigation or prosecution. 39It has to be recognized that it’s not mandatory for States to provide with residencepermits to victims of human trafficking. 40 Notwithstanding, even though the T Visarequirement to cooperate with law enforcement can be waived in certain circumstances, it stillputs the victim in a position where she or he has to provide evidence of the physical orpsychological trauma to the authorities to be able to benefit from the waiver, since it might mostlikely entail re-victimization of the man-trafficking-tnonimmigrant-status37Id. This type of visa is valid for four years and a visa holder may be eligible to apply for permanent residence(Green Card) after three years in a T nonimmigrant status.38Chapkis, W. (2003). Trafficking, Migration, and the Law: Protecting Innocents, Punishing Immigrants. Genderand Society, 17(6), page 932. Available at http://www.jstor.org/stable/359467739Questions and Answers: Victims of Human Trafficking, T Nonimmigrant Status, available kingInPersons.aspx10
MexicoAccording to the UNODC, from 2012 to August 2015 there have been 706 identifiedvictims of human trafficking in Mexican territory. 41 Aware of this reality and its obligationsunder Palermo Convention and Protocol, in June 14th 2012, the Mexican Government approvedthe General Law on Human Trafficking (Ley General para Prevenir, Sancionar y Erradicar losDelitos en Materia de Trata de Personas y para la Protección y Asistencia a las Víctimas deEstos Delitos), which was reformed in March 19th 2014. 42 In article 10 it defines trafficking inpersons as the conduct of one or many people to recruit, hook, transport, transfer, retain, give,receive or harbor one or many people for the purpose of exploitation. 43Exploitation of a person shall be understood as: slavery 44, servitude 45, prostitution ofothers or any other form of sexual exploitation 46, labor exploitation 47, forced labor 48, forcedbegging 49, the use of children to commit illicit activities 50, illegal adoption 51, forced marriage52,organ, tissue and cell trafficking 53, and illicit biomedical experimentation on human beings.54What should be considered as exploitation goes farther in this Law that what is established inthe Palermo Protocol by including forced begging, illegal adoption, used of children to commit41From this number, 352 are domestic victims, 69 from Honduras, El Salvador and Guatemala, and 285 remainunknown. UN Office for Drugs and Crime, Country Reports 2017, North America, available /glotip/Glotip16 Country profile North America.pdf.42This Law is of public order and applicable throughout all the Mexican territory. General Law for Victims (LeyGeneral de Víctimas), art. 1, available in Spanish at Id., art. 1044Id., art. 10.I45Id., art. 10.I46Id., art. 10.II47Id., art. 10.IV48Id., art. 10.V49Id., art. 10.VI50Id., art. 10.VII51Id., art. 10 VIII52Id., art. 10.IV53Id., art. 10.X54Id., art. 10.XI11
illicit activities and forced marriage.The before mentioned Law establishes that the responsible authorities have to provideassistance to the victims in migratory issues, regardless of their migratory status in thecountry. 55 It also establishes that repatriation will always be voluntary, 56 humanitarian visaswill be provided to victims and their relatives while the criminal procedures are taking place. 57Unfortunately, this seems to assume that the victims will always want to follow a criminalprocedure.Furthermore, it establishes the creation of a fund that will be the basis for, when thejudge determines reparations, the victim can enjoy medical treatment, therapies and psychiatrictreatment, transportation to the country of origin if the victim so decides, food, provisionalhousing and basic needs items if necessary, compensation for the lost salaries, among others. 58The Law provides a comprehensive approach for the protection and assistance to thevictims of human trafficking, which is aligned with what is established in the Palermo Protocol.However, as Regina Castro Traulsen contends, Mexico’s real challenge is enforcement,implementation and effectiveness of the legislation. 59It is important to notice that the Law doesn’t establish any type of cooperationmechanism between the National Institute of Migration nor the Mexican Commission for the55Id., art 75Id., art. 7657Id., art 7858Id., art. 8259Regina Castro Traulsen, The Mexican Legal Remedies for Trafficking in Persons Victims and its compliancewith International Standards, page 28. Available at remedies-for-human-trafficking/5612
Assistance of Refugees (herein COMAR for its acronym in Spanish) nor makes any relationshipwith victims of human trafficking and the possibility to apply and be granted asylum dependingon the specific circumstances of each case.Dominican RepublicTrafficking in persons is a reality that also affects the Dominican Republic. According toUNODC, between 2012 and September 2015, 872 victims of trafficking in persons wereidentified. 60In 2003 the Dominican Government enacted Law 137-03 on Illicit Smuggling ofMigrants and Human Trafficking (herein Law 137-03) which entered into force on August 7th2003. The law defines trafficking in persons as “recruitment, transportation, transfer, harboringor receipt of persons, recurring to the use of threat, force, coercion, abduction, fraud, deception,abuse of power, situations of vulnerability or of giving or receiving payments or benefits toachieve the consent of person having control over other person, for the purposes of exploitation,for the exercise of any form of sexual exploitation, pornography, debt bondage, forced labor orservices, marriage, irregular adoption, slavery or similar practices or the removal of organs.”61The definition fulfills all the elements established in the Palermo Protocol and in fact goesfarther in the definition of the scope of exploitation by specifying marriage, irregular adoption,pornography and debt bondage.60About 210 victims were Dominican citizens domestically trafficked and 22 Dominicans repatriated from othercountries. On the other hand, 61 of the identified victims were Haitians and five victims were trafficked from EastAsia. Five hundred eighty-seven children and 285 adults; 309 for sexual exploitation, 258 for begging, 31 forforced labor, 42 for illegal adoption and for the rest, the form of exploitation was not reported. UN Office forDrugs and Crime, Country Profiles 2017, Central America and the Caribbean. Available /glotip/Glotip16 Country profile Central AmericaCaribbean.pdf61Id., art. 1(a)13
A very interesting and ground-breaking feature of Law 137-03 is that it establishes that not onlyindividuals can be held responsible for trafficking in persons but also companies can be heldliable for the commission of the crimes with a variety of sanctions that can be imposed,including the dissolution of the company. 62 This is not established in any of the other twodomestic legislations reviewed in the present research.The law establishes that the privacy and identity of the victims shall be protected. 63 Italso establishes that the victim shall receive legal assistance so her or his opinions orpreoccupations are presented and examined during the criminal procedure against the criminalsand/or traffickers. 64 Moreover, it states that victims will receive physical, psychological andsocial attention, in addition to counseling and information about their rights, 65 adequatehousing, medical attention, access to education, capacitation and access to employment. 66The law does an important job capturing pillar remedies for victims of humantrafficking, however certain observations should be made. The law takes an exclusivelycriminal procedure approach to the issue of human trafficking, not taking into considerationthat there might be other pathways that the victims would want to pursue as they exercise theirright to justice. Instead of providing information on relevant court and administrativeproceedings in general, as the protocol does, the Law exclusively mentions criminal procedure.Furthermore, it does not specifically provide the possibility for victims to obtain62Id., art. 4: “Legal persons are criminally responsible and can be condemned for smuggling of migrants andtrafficking in persons committed by any of the management administrative, supervisory bodies or those that mustrespond socially, generally or collectively or representatives of the legal persons.”63Id., art. 964Id.65Id., art. 1066Id. It doesn’t specifically mention if these protections are temporary or provisional. It also establishes thatvictims of trafficking, especially women, children and adolescents, will be subject to psychological evaluations orother types of evaluations that are required for their protection, taking into consideration their age and gender.14
compensation for the damages suffered, which falls short from what is established in thePalermo Protocol. Moreover, it doesn’t provide any type of visa or residence for victims, unlikeUnited States and Mexico, nor it mentions a specific prohibition of refoulment, which leavesvictims in serious danger and legal uncertainty. 67Furthermore, Law 137-03 does not mention anything about the possibility for a victimof human trafficking to seek asylum, nor includes the National Commission for Refugees(herein CONARE for its Spanish acronym) as an actor that might have any involvement in theprocess.As mentioned earlier, many victims of human trafficking that are trafficked to the UnitedStates, Mexico and the Dominican Republic are profiled and selected by their traffickersbecause of their nationality, race, religion, membership of a particular social group, andsometimes because of their political opinion. Traffickers know that there are circums
Mexico and the Dominican Republic. THE CENTER for CIVIL and HUMAN RIGHTS This paper was prepared for a Spring 2017 Directed Reading Course at Notre Dame Law School, co-taught by Profs. . Legal Remedies for the Right to Asylum for Qualifying Victims of Human T rafficking: A Comparative Analysis between United States, Mexico and the Dominican .
