Jennifer Hill, attorney for Advocacy Partners Team
For almost two years, she worked for a family that paid her to what amounted to about $3 an hour for days that stretched to 13 hours. At night, she slept on the floor of the family’s apartment in a posh Miami neighborhood.
Her employers also denied her access to health care, monitored her communications and warned her that if she complained about her working conditions she would be deported to her native Colombia and lose the temporary U.S. visa obtained for her by the family.
When she finally overcame her fears in October of last year, Ana — not her real name — gathered up her identification documents and two changes of clothes and left. She filed a complaint against her employer and cooperated with federal officials in an investigation that eventually determined that she was a victim of exploitation.
But a few months after she fled, she was arrested by Customs and Immigration agents.
“This is the worst thing that ever happened to me,” Ana said during a brief telephone interview from the Broward Transitional Center, an immigrant detention facility in Pompano Beach. El Nuevo Herald is not using the real name because of fears of reprisals against Ana and her two young children, who are still in Colombia. She has applied for a special visa for victims of human trafficking.
For many lawyers and advocates, Ana’s case highlights contradictions within the U.S. government. The Department of Labor has concluded that she is a victim of human trafficking who must be protected. But she has been locked up for months under the custody of Immigration and Customs Enforcement (ICE) — even as the Department of Labor investigated her case.
Since her detention four months ago, lawyers for two non-profit organizations have been trying to win her release while her labor exploitation case is pending. But an immigration judge had repeatedly denied bond, ruling that she is a flight risk because of a theft accusation pending in Miami — filed by the family that once employed her.
In August, the Department of Labor issued a ruling that certified that Ana was indeed the victim of “a severe form of human trafficking.”
This week, as el Nuevo Herald was reporting this story, an immigration judge approved a $5,000 bail for Ana. But she remains in detention because she doesn’t have the money to pay for her release, which must be paid in full.
The ruling came weeks after her immigration attorney, Mark Prada, filed an appeal arguing that Miami Police had determined that there was “no further information” available to investigate the theft allegation. Ana emphatically denies the accusation.
Immigration experts said that detaining anyone who may be a victim of human trafficking is another form of victimization and does not meet the standards that federal agencies are required to meet.
“It’s crazy!” said Jennifer Hill, an attorney who specializes in labor law and represents Ana through the non-profit Advocacy Partners Team. “During the this entire process, which has been going on for months, every one of the agencies involved was informed that (Ana) was cooperating with authorities as a victim.”
ICE and the Department of Labor declined to comment on Ana’s case. But both agencies said they take human trafficking and workplace abuse complaints seriously. A spokesperson for the Department of Labor said the agency refers cases of potential human trafficking to appropriate law enforcement agencies for prosecution.
A spokesperson for the U.S. Customs and Border Protection, which detained Ana, did not reply to requests for comment.
Change in policy
Ana’s case is not uncommon.
“Sadly, almost 20 years after the law that protects victims of human trafficking was approved, we still see these kinds of cases where the victims are detained,” said Ana Isabel Vallejo, a lawyer with VIDA Legal Assistance. “Although these kinds of situations have diminished over the years, many times — while the cases are processed — a person can be detained for immigration violations before he or she is determined to be a victim.”
Thousands of people enter the United States each year with temporary visas like the one Ana had — B1 visas for domestic workers — which requires sponsorship. Their legal stay in the country is directly tied to their employers. Activists argue that cases like Ana’s deter victims from denouncing human trafficking or wage theft.
A report by the Polaris Project in 2015 indicated that 18 percent of the 30,000 calls to a help line for victims of human trafficking received from 2007 to 2014 came from immigrants with temporary visas.
Activists and lawyers say they are concerned that cases such as Ana’s could increase under the Trump Administration’s more aggressive immigration enforcement policies.
The former Obama Administration directed immigration agents to use their “prosecutorial discretion” to avoid detaining immigrants who denounce abuses or cooperate with authorities in human trafficking cases. New directives issued under President Donald Trump in February by the Homeland Security Department do not mention the same discretion.
“It’s very frustrating because we seem to be going backwards, after all the progress we made,” said Vallejo. “On one hand, we have a task force and agents at Homeland Security very knowledgeable about how to deal with victims. But if any victims of trafficking try to escape from their abusers, and the abusers file false accusations against them before the victims can contact authorities, the victims can be detained and even deported.”
The new Homeland Security directives say that undocumented immigrants are a priority for deportation in virtually any scenario, even if the person has not been formally accused, charged or convicted of a crime. During the Obama administration, immigration officials could use their discretion on detaining undocumented immigrants with no criminal record.
Almost nine months after she fled her employers’ apartment and sought the help of the Miami Workers’ Center, Ana found out that the family had accused her of theft. The case has been pending for more than one year, but the family has presented no evidence and police have never questioned Ana. She has not been charged with any crimes.
This is how Ana’s dilemma unfolded, according to her attorneys and the Department of Labor report:
On Oct. 28, 2016, a day after she fled and the former employers unsuccessfully attempted to persuade her to return, they called the police and alleged that she had stolen $1,200 from the home.
On Oct. 30, Ana’s former employer sent her a text message accusing her of “disloyalty.”
“Think about [your children] in whatever decision you make... [they] need a mother who does not make a mistake and who makes the best decisions for their well-being,” said the text, quoted in the Department of Labor report.
Ana “fears that [her employers] will take retaliatory acts against her to get her deported and also harm [her] family in Colombia,” said the report, which describes the family as “resourceful and influential” in the Colombian region where Ana is from. El Nuevo Herald did not contact the employers and is not revealing their identities due to the nature of the case.
Days after receiving the threatening message, Ana filed a complaint with the Department of Labor, which started an investigation in 2017.
The family’s allegation of theft is not uncommon.
A report by the New Orleans Workers Center for Racial Justice showed that false accusations are a frequent form of reprisal used by employers against immigrant workers. Its analysis of hundreds of cases showed that “private actors... use immigration enforcement to hide their own unlawful behavior” by trying to “deport the evidence” of abuses.
Held in captivity
The Department of Labor report paints a portrait of captivity.
During the first year of employment, Ana had to use one of her boss’ cell phones to talk to her family in Colombia. Her phone calls and Facebook chats were monitored. And when she complained of health issues, the family brushed it off.
At one point, the family told her to take over-the-counter pain killers to treat sharp abdominal pain. After a friend convinced to go to an emergency clinic, Ana was diagnosed with a kidney infection.
The suffering from the family abuse ended when Ana left the home last October. But a new saga began when she was detained eight months later.
In June, Ana was a passenger in a vehicle driven by an undocumented immigrant as they tried to enter Port Everglades in Fort Lauderdale. They were going to a gathering at the convention center and apparently did not know that Port Everglades is guarded by Customs and Border Protection agents. By then, Ana’s visa had expired. She was taken into custody and turned over to ICE.
“Many times I thought about signing those papers (voluntary deportation) and leaving,” Ana said. “This is horrible, horrible. But then I think about my children and what could happen if I go back” to Colombia.
At the time of Ana’s detention, Hill, her attorney, was awaiting for the human trafficking certification recently issued by the Department of Labor to apply for a T Visa for Ana. The T Visa is granted to victims of human trafficking and their close relatives. A decision on the visa application is pending.
“I have a lot of questions, like many people who have to deal with these kinds of cases. Is that how things are going to be from now on? Is that how we’re going to treat victims of human trafficking” she said. “During all this process I hoped that the agents, the judge, someone would make the decision to protect (Ana). They all said they could not.”
Follow Brenda Medina in Twitter: @BrendaMedinar