Issue 11.1-11.2 | Fall 2012/Spring 2013 / Guest edited by Elizabeth Bernstein and Janet R. Jakobsen

Securing Rights and Seeking Justice in the US Deportation Regime

State-Led Assault on Migrants and Sex Workers

A repressive immigration regime premised on raids, arrests, and deportations has profoundly shaped US antitrafficking policy. Only a small number—under 4,000—of exploited migrants have been assisted by antitrafficking policies. Meanwhile, vast numbers of migrant workers labor unprotected and live in fear of detection and deportation.

Under the rubric of humanitarianism, nation-states single out populations for assistance, but place limits on these commitments, capping how many people they will assist, how much assistance they will provide, and for how long. States establish a hierarchy of recipients using humanitarianism, as anthropologist Didier Fassin writes, as both a “moral discourse” as well as a “political resource” to justify a range of actions.[1] In antitrafficking humanitarianism, victimhood is bestowed on only a small subset of exploited workers. Trafficked persons worthy of immigration relief and social assistance in the United States are the recipients of a large, government-funded, media-covered, relief apparatus that is disproportionate to the numbers of those actually assisted and of those left to continue working in dangerous and vulnerable situations.

Following the passage of the Trafficking Victims Protection Act (TVPA) in 2000, the Bush administration’s obsession with prostitution defined its understanding of “trafficking victims,” and which organizations would assist with “rescues” and aftercare. The Bush administration decoupled trafficking from the issues of migration and labor, and reframed trafficking as about sex. Fighting trafficking in the United States became a cover for antiprostitution activists and policy makers to crack down on sex work. The United States’ antiprostitution zealotry had a long reach through the US Department of State’s annual Trafficking in Person Report (TIP Report) as well as through US government requirements that any foreign, nongovernmental organizations receiving US government funds for antitrafficking efforts must sign an antiprostitution pledge. The stage was set: trafficking was about coerced sex, a conclusion affirmed by mainstream feminist organizations, evangelical organizations, do-gooder celebrities, and media outlets ready to provide sensationalistic details of sexual sins and redemption.

Almost immediately, the state also undid its own antitrafficking policies through its immigration policy: first it looked for one kind of trafficking “victim” in brothels and massage parlors, and, in the process, arrested US-citizen sex workers and deported foreign sex workers. By also ramping up immigration raids on workplaces, the state created the current climate of fear of detection. In this environment, abused workers are not coming forward to report actual instances of “trafficking” into forced labor, while migrant women working in the sex sector are coercively “rescued” in the name of ending trafficking. The passage of antimigrant legislation and policies, on the state and local level, has kept migrant communities distrustful of law enforcement and thus fearful of reporting workplace abuses or crimes in their homes or neighborhoods. These policies also encourage racial profiling. Instead of creating channels of trust and communication, both kinds of raids have had the opposite effect. Not only do exploited workers weigh the risks of reporting abuse, but witnesses to abuse—coworkers, neighbors, and abusers’ family members—are not coming forward in this atmosphere of all-out assault on the sex sector and on migrant communities.

Avoiding Detection, Avoiding the State

Between 2005 and 2011, I traveled throughout the United States to meet with individuals whom the US government had determined were “trafficked” to the United States, as part of the field research for a forthcoming book, Life Interrupted: Trafficking into Forced Labor in the United States (Duke University Press). My current field research on the effects of deportation—or the threat of deportation—in low-wage communities and worksites grew out of this project with formerly trafficked persons: “exceptions” in this deportation regime. As a scholar-activist on migrants’ rights and sex workers’ rights, I have been eager to call attention to the vulnerability of large numbers of undocumented—and deportable—migrants. While spectacular stories of women and girls in forced sexual labor dominate in the media and the public’s understanding of “trafficking,” stories about rampant and unfettered exploitation of migrants in a number of industries go unreported or are taken-for-granted as part and parcel of doing business.

Although extreme abuse may be exceptional, other forms of exploitation—such as wage theft—are commonplace for migrant workers. Most undocumented workers work within a kind of labor purgatory since their exploitation is not exploitative enough to qualify as “trafficking.” The new legal relief is a binary regime: one is either trafficked or not. Providing protections for only the most extreme cases of exploitation sidesteps the divisive politics of immigration reform.

In the absence of federal immigration reform, states and localities enacted legislation and ordinances—such as adopting 287(g) agreements and “secure communities” programs—that target undocumented migrants. A pediatrician in Georgia explained the chilling effects of new statewide antimigrant legislation: “I’ve never had this happen before. My patients are asking if they should leave Georgia. I do not know what to say to them.” The assault on migrants mounts and takes new forms every day. US residents along the US-Mexico border, for example, text Border Patrol agents if they see anyone trying to cross the border. Surveillance by the state—as well as by the ordinary citizenry—has terrified and silenced communities. Extreme vulnerability, exploitation, and violence can result in this environment. Women and men are not reporting domestic violence in their homes, and wage theft, unsafe working conditions, sexual assault, or verbal or physical abuses in the workplace.

The violence of the deportation regime is hard to ignore: nursing mothers have been held in immigration detention and parents have been deported while their US-citizen children stay behind, raised by other family members, friends, or foster care. Individuals in deportation proceedings must report on a regular basis to ICE (US Immigration and Customs Enforcement) subcontractors—immigration “parole” officers” of sorts—while waiting for a determination of their legal status. These subcontractors are often hours away—sometimes in another state. It is not only difficult to make ends meet when working part-time to accommodate this parole schedule, but off-the-books employers also know that these employees are in a compromised position to negotiate better pay or work conditions. In these low-wage communities, women often are the main breadwinners in the household since in some local economies they find work in domestic labor or in garment manufacturing more regularly than men looking for work in a flailing construction industry.

Following a raid at a meat-processing plant in Postville, Iowa, 300 of the 389 individuals apprehended by immigration agents were charged, convicted, and sentenced within ten days. Group trials were held in temporary fairgrounds. The American Civil Liberties Union observed that the close coordination before the raid between the prosecutor and the chief judge to hasten the process and structure plea agreements was highly irregular and raised due-process concerns. While such immigration raids strain notions of justice, the benefits that “trafficked persons” receive expose the contradictory logic that undergirds US immigration policy. Workplace raids, antimigrant state and local policies, along with ordinary citizens’ surveillance, drive undocumented migrants further underground, and antitrafficking policy collapses in on itself.

The Way Forward for Feminist Politics: Possibilities for Collaborations?

In the struggle to secure migrants’ rights and well-being in the United States, activists have faced many setbacks. With the passage of antimigrant legislation in Arizona (S.B. 1070), and copycat legislation in Alabama, Georgia, Indiana, South Carolina, and Utah, those in the migrants’ rights community have been kept running. And, framing trafficking as sex trafficking has rendered workers in the sex sector more vulnerable as they seek to work further underground. It also has hindered progress on preventing forced labor. Time was lost, and critical collaborations between migrants’ rights, workers’ rights, and sexual-rights communities have not been made.

Migrants’ rights advocates have strategically avoided collaborations with antitrafficking advocates, in part to avoid the toxic politics around sexual labor. Sex workers’ rights communities have largely been left out of both migrants’ rights and antitrafficking forums and funding. Low-wage workers’ rights communities almost never include those working in sexual labor.

Just as with issues related to sexual labor, so, too, has the double vulnerability of LGBTI undocumented community members been left out of discussions on migrants’ rights. Certain interest groups—business, political, and religious—benefit from keeping these issues siloed and their advocates working separately. The prisons and detention facilities holding individuals in deportation proceedings are big businesses, with counties throughout the south courting ICE’s contracts. Antitrafficking efforts, popularly understood as “feminist,” have provided a smoke screen for antiprostitution activists to push a range of nonfeminist issues. For example, for five years the US government designated the United States Conference of Catholic Bishops (USCCB) as the main contractor to distribute funding for the resettlement of trafficked persons. The revocation of their funding—when it came to light that they had not allowed their subcontractors to provide reproductive-health information or services to trafficking clients—has been some good news that bodes well for more evidence-powered policy shifts in the future.

On a hopeful note moving forward, I have faith in the power of good writing to persuade, and eagerly await many of this journal issue’s participants’ scholarship on labor, gender, migration, and trafficking. Their evidence-based writing will provide a counter-narrative to the urban legends and wild claims that have become the dominant storyline in the media about “trafficking.”

Selected References

Bernstein, Elizabeth. 2010. “Militarized Humanitarianism meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Antitrafficking Campaigns.” Signs: Journal of Women in Culture and Society 35(1): 45-71.

Brennan, Denise. 2008. “Competing Claims of Victimhood?: Foreign and Domestic Victims of Trafficking in the United States.” Sexuality Research and Social Policy, 5(4): 45-61.

__. 2014. Life Interrupted: Trafficking into Forced Labor in the United States. Durham: Duke University Press.

Burns, Crosby, Ann Garcia and Philip E. Wolgin. 2013. “Living in Dual Shadows: LGBT Undocumented Immigrants.” Washington, D.C. Center for American Progress. March 8., accessed 6/19/13.

Camayd-Freixas, Erik. 2008. Statement at the U.S. District Court for the Northern District of Iowa Regarding a Hearing on “The Arrest, Prosecution, and Conviction of 297 Undocumented Workers in Postville, Iowa, From May 12 to 22, 2008.”, accessed: 5/4/2012.

Capps, Randy, Rosa Maria Castañeda, Ajay Chaudry and Robert Santos. 2007. “Paying the Price: The Impact of Immigration Raids on America’s Children.” The Urban Institute for the National Council of La Raza.

Ditmore, Melissa. 2009. “Kicking Down the Door: The Use of Raids to Fight Trafficking in Persons.” New York: Sex Workers Project at the Urban Justice Center.

Human Rights Watch. 2012. Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities. New York, NY.

Human Rights Watch. 2011. No Way to Live: Alabama’s Immigrant Law. New York, NY.

Human Rights Watch. 2007. Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy. New York, NY: Human Rights Watch.

Meng, Grace. 2012. Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the US to Sexual Violence and Sexual Harassment. New York, NY.

Organization for Refuge, Asylum & Migration (ORAM). 2013. “Blind Alleys: The Unseen Struggles of Lesbian, Gay, Bisexual, Transgender and Intersex Urban Refugees in Mexico, Uganda and South Africa.” San Francisco. February., accessed 6/19/13.

PROS Network (Providers and Resources Offering Services to Sex Workers) and Tomppert, Leigh of the Sex Workers Project at the Urban Justice Center. 2012. “Public Health Crisis: The Impact of Using Condoms as Evidence of Prostitution in New York City.” April., accessed 6/19/13.

Rights Working Group. 2010. “Faces of Racial Profiling: A Report from Communities Across America.” Washington, D.C. September.

Schleifer, Rebecca and Darby Hickey. 2013. “Partners, not pledges, need to fight HIV.” Special to CNN. May 23., accessed 6/19/13.

Smith, Rebecca and Eunice Hyunhye Cho. 2013. “Workers’ Rights on ICE: How Immigration Reform Can Stop Retaliation and Advance Labor Rights.” The National Employment Law Project. February.

  1. Fassin, Didier. 2010. “Ethics of Survival: A Democratic Approach to the Politics of Life.” Humanity 1: 81-95. [Return to text]