Understanding Immigration, Part II

Humanitarian Relief for Immigrants

By Linda A. Brandmiller and Esmeralda Sosa Serratos

Although immigration options are in a state of chaos—with promises of unilateral enforcement and mass deportations looming when the next administration takes over—several humanitarian remedies are currently available to the following immigrants who are in the United States: (1) victims of human trafficking (T Visas); (2) victims of crime (U Visas); (3) victims of domestic abuse (Violence Against Women’s Act—VAWA); (4) abused/abandoned and neglected children (Special Immigrant Juvenile Status); (5) TPS (Temporary Protected Status); and (6) those persecuted in their home country and fear return (Asylum).

Victims of Human Trafficking (T Visas)

Modern prohibitions of human trafficking in the United States have their roots in the 13th Amendment to the Constitution, which barred slavery and involuntary servitude in 1865. The Victims of Trafficking and Violence Protection Act of 2000 (TVPA) is a  federal statute, enacted in 2000 and signed by President Clinton. In addition to its applicability to United States citizens, the TVPA authorizes protections for undocumented immigrants who are victims of severe forms of trafficking and violence.1

Following its initial enactment, the TVPA was renewed in 2003, 2006, 2008 (when it was renamed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008). The law lapsed in 2011, and in 2013, the entirety of the Trafficking Victims Protection Act was attached as an amendment to the  Violence Against Women Act (VAWA) and passed.2

As described on the United States Citizenship and Immigration Services (USCIS) website:

Human trafficking, also known as trafficking in persons, is a crime in which traffickers use force, fraud, or coercion to compel individuals to provide labor or services, including commercial sex. Traffickers often take advantage of vulnerable individuals, including those lacking lawful immigration status. T [V]isas offer protection to victims and strengthen the ability of law enforcement agencies to detect, investigate and prosecute human trafficking.3

One of the inherent problems with this humanitarian remedy is its requirement that victims of human trafficking report the crime to law enforcement officials. In addition, many human trafficking victims do not selfidentify as victims—often because they are paying back a debt to a smuggler or other individual who “finds” them work, then takes their paycheck or reduces it for room and board, essentially rendering them indentured servants. Sometimes, it is a parent or other family member who has trafficked a relative for sex, labor, or both. Any immigrant who is helping someone else earn money off of him or her is potentially a trafficking victim.

While the annual congressional allocation quota for T Visas is 5,000–10,000, fewer than 20,000 total T Visa applications were approved between the program’s inception in 2003 and the end of Fiscal Year 2021. Sadly, this statistic is not indicative of how many trafficking victims exist in the United States. Rather, it is indicative of how difficult it is to identify these victims and help them navigate the complex immigration system.4

Victims of Crime (U Visas)

According to the USCIS:

The U nonimmigrant status (U Visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. . . . The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of noncitizens[,] and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. The legislation also helps law enforcement agencies to better serve victims of crimes.5

The pertinent crime has to have occurred in the United States, and as with T Visas, there are two parts to this humanitarian relief: (1) being a victim of qualifying criminal activity and having suffered substantial physical or mental abuse as a result; and (2) reporting the crime to law enforcement and being helpful in the investigation or prosecution of the crime. The annual limit on the number of U Visas that may be granted to principal petitioners is 10,000, and while processing times can vary widely, it is not unusual for it to take up to a decade to obtain relief in this category.6

Victims of Domestic Violence (VAWA)

According to the USCIS:

With the passage of the Violence Against Women Act of 1994 (VAWA) and its subsequent reauthorizations, Congress provided noncitizens who have been abused by their U.S. citizen or lawful permanent resident relative the ability to independently petition for themselves (self-petition) for immigrant classification without the abuser’s knowledge, consent, or participation in the immigration process. This allows victims to seek both safety and independence from their abusers.

Spouses and children of U.S. citizens and lawful permanent residents, and parents of U.S. citizens who are 21 years of age or older, may file a self-petition for immigrant classification with USCIS. A noncitizen filing the self-petition is generally known as a VAWA selfpetitioner. If USCIS approves the selfpetition, VAWA self-petitioners may seek legal permanent residence and obtain a Green Card.7

Although VAWA uses the word “Women” in the title, this humanitarian relief also applies to men, children, and the elderly. VAWA recognizes and acknowledges that an immigrant suffering in an abusive relationship need not remain with the abuser with the hope of obtaining legal status, but can instead leave the relationship and petition on his or her own. In fact, abusers often dangle the “opportunity” of obtaining legal status over the victim, as well as threaten the termination of a filed application, if the immigrant does not comply with their demands.

In fact, the majority of people who immigrate to the United States are seeking a better life for themselves and their families. Many of them face significant, persistent persecution in their home countries, often at the hands of their own government.

Abused/ Abandoned and Neglected Children (Special Immigrant Juvenile Status)

If a child (a person under age 21 in the federal code) is abused/abandoned/neglected (even in his or her home country) and is unable to reunify with at least one parent in Texas, a state court order from a judge presiding over a suit affecting the parent-child relationship (SAPCR) can be used by, or on behalf of, the child to self-petition for legal status.8 Neglect and abandonment are casespecific but can include death, imprisonment, leaving the child, not permitting the child to continue in school, putting the child to work at a young age, and—as Judge Peter Sakai once pointed out—permitting or encouraging a child to travel thousands of miles alone through multiple countries in order to get to the United States, with the expectation that the child will be working and sending back money to the family, thereby using the child for economic gain.

Here again, the biggest challenge is identifying these children before they turn 21. Once the child turns 21, he or she no longer qualifies for this sort of assistance. Although there is currently a wait list for children to apply for residency, once the first application is approved, the child may apply for a work permit. Because this humanitarian relief is exclusive to children, those who become American citizens through this program can never petition for their parent(s) to obtain legal status.

Temporary Protected Status (TPS)

TPS is often a misunderstood form of humanitarian relief, applicable only to people already in the United States. According to USCIS: “The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.” Examples include ongoing armed conflict, an environmental disaster such as hurricane or earthquake, an epidemic, or some other kind of extraordinary and temporary condition. Countries currently designated for TPS include Afghanistan (until May 2025), Burma (until November 2025), Cameroon (until June 2025), El Salvador (until March 2025), Ethiopia (until December 2025), Haiti (until February 2026), Honduras (until July 2025), Nepal (until June 2025), Nicaragua (until July 2025), Somalia (until March 2026), South Sudan (until May 2025), Sudan (until April 2025), Syria (until September 2025), Ukraine (until April 2025). Venezuela (until April or September 2025), and Yemen (until March 2026).

A TPS designation can be made for six, twelve, or eighteen months at a time. While TPS does provide for a work permit during the approved designations, “Temporary Protected Status” is, as the name implies, a temporary benefit that does not lead to lawful permanent resident status or give any other immigration status, and it may not be renewed/redesignated at any time. Once their temporarily protected status ends, TPS beneficiaries must return to whatever immigration status they held prior to receiving TPS, unless they have successfully acquired a new immigration status. TPS beneficiaries who entered the United States without inspection and who are not eligible for other immigration benefits, for example, would return to being undocumented at the end of a TPS designation and become subject to removal. As of March 31, 2024, there were approximately 863,880 people with TPS living in the United States, with an additional 486,418 initial or renewal applications pending at United States Citizenship and Immigration Services (USCIS).9

Asylum

Asylum is one of the most controversial immigration topics. Every day, news outlets broadcast the “border crisis,” often claiming that migrants come to the United States just to commit crimes, smuggle drugs, drain state/ national resources, or work without paying taxes. These sorts of reports are patently untrue. In fact, the majority of people who immigrate to the United States are seeking a better life for themselves and their families. Many of them face significant, persistent persecution in their home countries, often at the hands of their own government. After undertaking a dangerous journey to the United States just to escape from the violence or strife in their home countries, they then are faced with the difficulty of seeking asylum here.

Seeking asylum is a legal process recognized and incorporated into American law in the Refugee Act of 1980. Asylum is a form of protection to foreign nationals who meet the definition of “refugee.” The United Nations 1951 Convention and 1967 Protocol define “refugee” as a person who is unable, or unwilling, to return to his or her home country and cannot obtain protection in that country—due to past persecution or a well-founded fear of being persecuted in the future—“on account of race, religion, nationality, membership in a particular social group, or political opinion.” These five enumerated groups are important in understanding asylum claims since, generally, problems such as gang-violence, extortion, inability to find employment, reunifying with family, or wanting a better life are not grounds for seeking asylum.10

Asylum seekers can apply for asylum either at the United States border or inside of the United States. However, during the last administrations, there have been multiple changes to this process. In addition to the “Asylum Ban” in May 2023, the BidenHarris administration issued an executive order in June 2024 that was amended on September 30, 2024, with the stated intent to “strengthen border security” by tightening asylum restrictions even further.11 Under this new order, the legal right to seek asylum will remain suspended until the average number of daily southern border encounters drops below 1,500 for twenty-eight consecutive days, an increase from the previous sevenday requirement. Encounters do not include people arriving at ports of entry. The updated order now includes unaccompanied children in the calculation of daily encounter averages, even though they will remain exempt from the suspension and related measures.12

For decades, people who wanted to seek asylum at the border presented themselves at the port of entry (e.g. bridge), claimed fear of returning to their home countries, and went through the Credible Fear Interview process with an asylum officer. If they passed this process, they were permitted to apply for asylum. After the adoption of the “Asylum Ban” in May 2023, however, the United States government added a “rule”—not contained in the law—that asylum seekers who crossed through another country prior to arriving at the southern border of the United States were barred from asylum protection, unless they had: (1) previously applied for, and were denied, asylum elsewhere; or (2) made an appointment through the CBP (Customs and Border Protection) One App.

Launched in 2020, the CBP One App was designed to enhance border-processing functions and expedite entry processes for individuals and cargo at ports of entry. However, CBP One has also become the primary vehicle for asylum seekers at the United States/Mexico border to schedule appointments so that they can be processed for admission at a United States port of entry.13 This process has resulted in a sort of random “lottery system,” forcing immigrants to wait in Mexico in dangerous camps for many months, hoping to get an appointment to enter the United States. Additionally, cartels have reportedly managed to infiltrate the CBP One App and gain control of the appointments, selling them to immigrants who have the resources. Recently, the San Antonio Express News reported that a partnership among Mexican law enforcement, immigration officials, and bus station employees has resulted in CBP One App users’ falling prey to extortion, harassment, and forced relocation to southern Mexico.14

In addition to the arduous process of seeking asylum, the likelihood of actually winning an asylum claim is uncertain and depends on myriad factors, such as the political situation in the country; the wellfounded fear of persecution based on a protected ground (especially for those cases where the protected ground is a particular social group); the nexus or the reason why the asylum seeker was persecuted in his or her home country; proof of the persecution, including reports, witnesses, or other data/ information; his or her credible, consistent testimony during the asylum interview and hearing, among others factors. Additionally, an asylum applicant’s likelihood of success can be affected by such things as whether he or she: (1) reported the persecution to law enforcement in his or her home country; (2) moved prior to fleeing; (3) obtained a passport shortly before leaving his or her country, or once in the United States; and (4) applied for asylum before the expiration of a year in the United States. Further, circuit law, the trial attorney, and the immigration judge significantly affect an asylum seeker’s ability to win an asylum case. TRAC (Transactional Records Access Clearinghouse) provides a snapshot of judges’ approvals and denials by immigration court. In San Antonio, thirteen immigration judges range in asylum grants from 27.1% – 71.6%.15

The Executive Office of Immigration Review (EOIR), which oversees immigration courts, reports that—as of October 10, 2024—there are over 3.5 million court cases pending. That means that—aside from the difficult processes of arriving in the United States and applying for asylum—waiting for a court hearing and final adjudication of a case often takes years. Over 1.5 million asylum seekers are awaiting a court hearing.16

Simply put, asylum seekers not only face a dangerous journey to come to this country, but they also face a complex, everchanging process of applying for asylum. The regularly false narrative attached to asylum seekers ignores the fact that—to even apply for asylum—the immigrant must be in the country, so there is no “illegal” entry. Every day, people attempting to escape fear, suffering, and persecution in their country of origin try to arrive at the United States border, in search of a better and safer life. While rules and restrictions are a necessary part of border security, attempting to unilaterally ban asylum seekers is against the laws, conventions, treaties, and protocols that have been in effect for decades.

Lastly, in addition to calling for mass deportations, ending Deferred Action for Childhood Arrivals (DACA), and abolishing birth-right citizenship, Project 2025’s 900page “Mandate for Leadership” for the new administration has a clear plan to restrict immigration at ALL levels, including by reducing “chain migration” or applications of family members (ironically, the way that the soon-to-be-again First Lady and her parents achieved legal status in the United States). Project 2025 also calls for further restrictions on T Visas and U Visas, and plans to “significantly reduce eligibility” for both types of visas until they are ultimately abolished, stating that “[v]ictimization should not be a basis for an immigration benefit” and that—even before it is removed from the law—U Visa application eligibility should be “significantly” restricted. This will also potentially affect abused/abandoned/ neglected children from qualifying for relief as special immigrant juveniles (“SIJs”). Project 2025 urges Congress to repeal existing TPS designations, with little hope of expanding this category of humanitarian relief or redesignating these countries. The Project 2025 guide also calls for USCIS to “pause” receiving applications for a given immigration type if backlogs become “excessive”— essentially allowing the government to engineer a backlog by understaffing a given form and pausing applications indefinitely.17

With regard to asylum, the Project 2025 plan would “diverge from international law by either eliminating the particular social group protected ground ‘as vague and overbroad’ or creating a new definition that at a minimum states that persecution based on a failure of one’s government to protect a victim from gang and domestic violence will not be sufficient”—thereby potentially eliminating up to one third of asylum claims.18 The recommendations also include raising the standard for the legally required “credible fear of persecution” by applicants and adding new bars to asylum, along with likely reinstating the “Remain in Mexico” policy, forcing non-Mexican nationals to wait in Mexico prior to being allowed to enter the United States and apply for asylum. Further, Project 2025 would limit work permission to only “certain categories of legal immigrants and non-immigrants,” without stating which ones, and these are only the plans highlighted as humanitarian relief. Considerably more restrictions regarding immigration are in the works for other areas as well.

One Final Note

Although much emphasis is being placed on the Trump Administration’s stated focus of targeting “criminal” immigrants for deportation, the belief that it will only be “those-who-deserve-deportation” or “not-me-because-I-am-not-a-criminal” is misunderstood and misplaced. According to the Congressional Research Service, almost half of the nearly 500,000 EOIR case decisions in Fiscal Year 2023 resulted in a removal order (deportation order); and 69% of these were absentia orders, meaning the immigrant may not even know that he or she already has a deportation order against him or her. In the first month of the current fiscal year alone—as of October 2024—immigration judges issued 35,657 deportation orders, with fewer than 1% based on alleged criminal activity.19

Simply put, asylum seekers not only face a dangerous journey to come to this country, but they also face a complex, ever-changing process of applying for asylum.

The American Immigration Council estimates that over a million immigrants already have “final orders of removal” but remain in the United States, either through official executive discretion or because immigration officials do not know their location. Sadly, these are the same— and likely the first—“criminal aliens” the Trump administration will target because they are easy to find, even without raids, tent cities, or judicial intervention because they have already had their “day-incourt,” and they either lost their cases or did not appear before the judge. Therefore, the first round of mass deportations will not likely target the serious criminals—such as rapists and murderers (statistically a very small percentage of immigrants)—but will instead focus on the “crime” of remaining unlawfully in the United States after a court decision. Many law-abiding immigrants are paying taxes with an ITIN number because they do not have a Social Security card. They will be easy to find. Everincreasing surveillance in public places and enhanced identification and tracking technologies will aid in identifying immigrants without legal status. Further, the government has access to an immigrant’s social media accounts—also easy to find. Buckle up because it is going to be a bumpy ride!

Esmeralda Sosa Serratos

Esmeralda Sosa Serratos is an associate attorney at Garcia and Garcia, Attorneys at Law PLLC. She is licensed in Mexico and Texas. Her practice focuses on Immigration Law.

Linda Brandmiller has twenty years of experience as an immigration lawyer in San Antonio, Texas, focusing on victim relief and special immigrant juvenile status.

Both are members of the State Bar of Texas’s Laws Relating to Immigration and Nationality Committee.

ENDNOTES

1 See Alison Siskin & Liana Sun Wyler, Trafficking in Persons: US Policy and Issues for Congress (Congressional Research Service May 1, 2014).

2 “Breaking News: Violence Against Women Act & Trafficking Victims Protection Reauthorization Act Passed.” Retrieved on May 23, 2013; archived from  the original on December 28, 2013.

3 http://uscis.gov/humanitarian/victims-of-human-trafficking-t-nonimmigrant-status (last visited on November 10, 2024).

4 https://uscis.gov/sites/default/files/document/factsheets/Characteristics_of_T_Nonimmigrant_Status_TVisa_Applicants_FactSheet.pdf (last visited on November 10, 2024)

5 http://uscis.gov/humanitarian/victims-of-criminal-activity-u-nonimmigrant-status (last visited on November 10, 2024).

6 Id.

7 http://uscis.gov/humanitarian/abused-spouses-children-and-parents (last visited on November 10, 2024).

8 http://www.uscis.gov/working-in-US/eb4/SIJ (last visited on November 10, 2024).

9 https://www.americanimmigrationcounsel.org/research/temporary-protected-statusoverview Temporary Protected Status: An Overview | American Immigration Council (last visited on November 10, 2024).

10 U.N. General Assembly (UNGA), Convention Relating to the Status of Refugees, § 1(A)(2), U.N. Treaty Series (Vol. 189), at 137 (July 28, 1951).

11 https://www.dhs.gov/news/2024/09/30/fact-sheet-joint-dhs-doj-final-rule-issuedrestrict-asylum-eligibility-those-who (last visited on November 10, 2024).

12 https://www.rescue.org/article/it-legal-cross-us-border-seek-asylum (last visited on November 10, 2024)

13 https://immigrationforum.org/article/cbp-one-fact-sheet-and-resources-directory (last visited on November 10, 2024).

14 https://www.expressnews.com/news/border-mexico/article/cbp-one-cartels-asylumseekers-19932259.php (last visited on November 10, 2024).

15 https://trac.syr.edu/immigration/reports/judgereports (updated 10/19/2023) (last visited on November 10, 2024).

16 trac.syr.edu/immigration/quickfacts/eoir.html (last visited on November 10, 2024).

17 https://immigrationimpact.com/2024/08/23/what-project-2025-says-/about/immigration/ (last visited on November 10, 2024).

18 www.nolo.com (last visited on November 10, 2024).

19 https://crsreports.congress.gov/product/pdf/IN/IN12318/1 (last visited on November 10, 2024).