The 'Slaver Waiver' in Biden's Amnesty Bill

Punishing those who engage in slavery or human trafficking is an 'American value'

By Andrew R. Arthur on March 4, 2021

In a March 1 post, I noted that there is a "Criminal Alien Amnesty Hiding in Biden Amnesty Bill", one that would provide a waiver benefiting drug traffickers, pimps, and rapists (among others). Among the aliens who could get to remain in the United States if this bill passes are those who have been convicted of engaging in slavery and human trafficking. I have been vexed ever since trying to figure out why that bill provides what, in essence, is a "slaver's waiver".

Before we get to the "why", though, I have to explain the "how" (that waiver would apply), and the "what" (the current slavery and human trafficking grounds of removal cover).

How. I explained how the waiver would work in my March 1 post, but I will briefly outline the parameters.

Technically, section 1204 of the "U.S. Citizenship Act" contains two waivers, one of the grounds of inadmissibility in section 212 of the Immigration and Nationality Act (INA) (for aliens who entered illegally or are seeking admission), and one of the grounds of deportation in section 237 of the INA (for aliens who have been admitted). Either can be granted for one of three reasons: "humanitarian purposes"; "to ensure family unity"; or where "a waiver is otherwise in the public interest".

The deportation waiver is slightly more restrictive than the inadmissibility waiver (both bar waivers of national security grounds). The latter waives any one or more of the grounds of inadmissibility, while the former excludes a waiver of deportation for three crimes classified as "aggravated felonies" in section 101(a)(43)(A) of the INA: "murder, rape, [and] sexual abuse of a minor."

The former has no such exclusions, because there is no "aggravated felony" ground of inadmissibility.

In my last post, I explained how even a deportable alien could get around even those restrictions by departing the United States and reentering, or by reapplying for a green card (even if the alien already has one).

This is not some theoretical construct, as both provisions make clear that they waive (respectively) any ground of inadmissibility or deportability "for any purpose, including eligibility for relief from removal". The drafters plainly envision that admitted criminal aliens will be able do an end-run around the criminal deportation bars by seeking re-adjustment of status.

What. Taking the deportation waiver at face value, however, it means that an alien can seek a waiver of any other aggravated felony, aside from murder, rape, and sexual abuse of a minor.

And again, because there is no aggravated felony ground of inadmissibility, aliens who haven't been admitted (including aliens who entered illegally) can get a waiver of any non-national security ground, including for any removable crime that is classified as an aggravated felony.

That's the "what", which brings me to the criminal slavery and human trafficking laws and their immigration implications.

Section 101(a)(43)(K)(iii) of the INA designates various federal crimes relating to slavery and human trafficking as aggravated felonies.

Those crimes are: 18 U.S.C. § 1581 (peonage); 18 U.S.C. § 1582 (vessels for slave trade); 18 U.S.C. § 1583 (enticement into slavery); 18 U.S.C. § 1584 (sale into involuntary servitude); 18 U.S.C. § 1585 (seizure, detention, transportation, or sale of slaves); 18 U.S.C. § 1588 (transportation of slaves from United States); 18 U.S.C. § 1589 (forced labor); 18 U.S.C. § 1590 (trafficking with respect to peonage, slavery, involuntary servitude, or forced labor), and 18 U.S.C. § 1591 (sex trafficking of children or by force, fraud, or coercion).

Those provisions criminalize some truly heinous acts (reading them is not for the faint of heart). Each is a crime of knowledge or intent, so they cannot be committed recklessly or unknowingly.

These criminal grounds and their immigration implications are not some old dusty relics of the law.

Congress added 18 U.S.C. §§ 1581 through 1585 and 1588 to the INA's aggravated felony definition in the Immigration and Nationality Technical Corrections Act of 1994. That portion of the aggravated felony definition was amended in its entirety (and sections 1589 through 1591 were added) by the Trafficking Victims Protection Reauthorization Act of 2003.

I note that current House Judiciary Committee Chairman, Rep. Jerry Nadler (D-N.Y.), was a cosponsor of that bill, so he is familiar with this provision.

Many of those underlying criminal provisions date to 1909 (with amendments in 1948, 1994, and 1996), but 18 U.S.C. §§ 1583 and 1587 were last amended in 2018, and sections 1589 through 1591 were not added to the federal criminal code until the Victims of Trafficking and Violence Protection Act of 2000.

In that bill, Congress stated:

As the 21st century begins, the degrading institution of slavery continues throughout the world. Trafficking in persons is a modern form of slavery, and it is the largest manifestation of slavery today. At least 700,000 persons annually, primarily women and children, are trafficked within or across international borders. Approximately 50,000 women and children are trafficked into the United States each year.

The State Department underscores those links between slavery and modern-day trafficking:

"Modern slavery," "trafficking in persons," and "human trafficking" have been used as umbrella terms for the act of recruiting, harboring, transporting, providing, or obtaining a person for compelled labor or commercial sex acts through the use of force, fraud, or coercion.

As recently as October 2013, the Washington Post reported that there were 30 million people living in slavery in the world, 60,000 of whom were in the United States. That is a lot of lives wasted in a wretched institution that should have been consigned to the ash heap of history long before 1865.

Hard statistics on convictions under these laws are hard to come by, but in 2018, the DOJ Bureau of Justice Statistics (BJS) reported: "The number of human trafficking defendants sentenced annually to prison increased more than fivefold from 2000 to 2015, from 132 to 759."

According to BJS, in FY 2015, there were seven criminal referrals to U.S. attorney's offices for peonage, one for enticement for slavery, 64 for forced labor, 31 for trafficking slaves, and 557 for sex trafficking. Thirteen of the defendants in those cases were aliens lawfully present, and nine were here illegally.

Why. Which, of course, raises the question of why President Biden would want to create a waiver for aliens with slavery and human trafficking convictions in his amnesty bill.

The fact sheet that preceded the formal introduction of that bill provides no answers. It begins: "President Biden is sending a bill to Congress on day one to restore humanity and American values to our immigration system." There is no humanity whatsoever in forcibly holding another in bondage, and slavery is anathema to "American values", no matter your interpretation.

For what it is worth, though, there is no reference to waivers in that fact sheet at all, just a vague reference to "keeping families together", which that waiver would plainly allow. Whether that is good for the American people, however, is a different question.

Nor was then-candidate Joe Biden pro-waiver for any offense (let alone for trafficking or slavery) in his campaign website. The word "waiver" never appears therein.

This is not an omnibus bill that is thrown together to get crammed through Congress at 3 AM on a Sunday so that senators and members can get home in time for Christmas. The drafters must have actually assumed that staffers (at a minimum) would take a glance at the language before votes were called, and really want this waiver to pass into law.

Or do they? It is not uncommon for legislative proposals to contain provisions that sponsors have included, but are really just placeholders they are willing to bargain away to get amendments they truly want. If that is true of the slavery and human trafficking waiver in the amnesty bill, however (and with all due respect), it is a more than slightly distasteful maneuver.

Perhaps the drafters of that bill do not know the full scope of that waiver. I doubt it, however, as the president promoted the bill on the campaign trail, and weeks passed between the time that fact sheet was issued and bill language was made available.

At the end of the day, I really cannot answer why a waiver for aliens convicted of slavery and human trafficking is in the president's amnesty bill. Senators and members may want to think long and hard before they put their names on it, though. Slavery — regardless of how it is defined — must be punished, and harshly. Doing so is an "American value".