Wednesday, September 22, 2021
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, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also began to climb. For example, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications adjudicated in fiscal year 2020, compared with just 28.12% in fiscal year 2015. These developments came as former President Donald J. Trump, like many presidents before him, proclaimed a 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 undermine protections for immigrant victims of trafficking. This Article demonstrates how administrative actors, through a range of tactics, including delay, rejection, and heightened stakes, have contorted the T visa application process to make it more difficult for immigrant victims to navigate. The Article explores how these actions—often diffuse and obscured—have been hard to identify and subject to judicial review. It warns that these bureaucratic tendencies have resulted in declining approval rates with the potential to 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.