Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Working Paper

Publication Date

2021

Publisher

Boston University School of Law

Language

en-US

Abstract

More than two decades ago, the Trafficking Victims Protection Act (“TVPA”) established 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. Indeed, generally fewer than 1,000 are approved annually, despite rising application rates. In the last four years, denial rates have skyrocketed, with 42.79% of all applications denied in fiscal year 2020. These developments came as former President Donald J. Trump, like many presidents before him, proclaimed his deep commitment to end the “epidemic” of human trafficking and to protect “innocent” victims.

Though scholars have critiqued the general protection framework for immigrant victims of trafficking, this article unearths an understudied problem: the often unseen role of the “shallow state.” In contrast to the much-discussed “deep state” of career bureaucrats, this article suggests that low-level administrative actors adjudicating humanitarian immigration cases have subtly worked to erode protections for immigrant victims. The article catalogues a range of tactics, including delay, rejection, and heightened stakes, and argues that these strategies have contorted the T visa application process, making it more much difficult for immigrant victims to navigate successfully. The article explores how actions of the shallow state—often diffuse and obscured—have been hard to identify or to subject to judicial review. It warns that these bureaucratic tendencies could erode protections for immigrant victims of trafficking for years to come. It thus prescribes not only greater attention to such practices, but also administrative and judicial remedies.

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Forthcoming publication in UC Irvine Law Review

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