Presentation on theme: "Coalition to Abolish Slavery & Trafficking"— Presentation transcript:
1An Introduction to Child Trafficking for Legal Service Providers: Identifying and Serving Survivors
2Coalition to Abolish Slavery & Trafficking Stephanie Richard, Managing Attorney(213) ext. 115Founded in 1998 in response to El Monte Sweatshop.Mission: to assist persons trafficked for the purpose of forced labor and slavery-like practices and to work toward ending all instances of such human rights violations.Lack of services for victims once identified. Started out social service and now have legal department.El Monte Sweatshop Workers, 1995LA Times
3CAST Services for Trafficking Survivors Housing/Basic Necessities: emergency/transitional housing, affordable housing, tenants’ rights education, utilities info, food, clothing.Medical: immediate screening for injury/illness, documentation of injuries/scars, nutrition assessment, follow-up health care, vaccinations/TB/STD/HIV tests, chronic illness care, OB/GYN, dental, vision.Education/Employment: literacy, ESL/GED/vocational training, labor law education, career planning, job search.Life Skills: cross-cultural education, transportation, signage, training to prevent exploitation, banking, financial budgeting.Legal Services: Immigration relief, victims-witness advocacy, civil case referrals, Long-term, comprehensive support for continuing legal needs.Comprehensive services—that meet immediate and long term needsAlso do this with legal services—mainly provide victim witness advocacy when reporting and if in involved prosecution, immigration relief, also referrals and technical assistance on civil claims. Also find clients are exploited so over long term legal services---could include thing like divorce, helping receive restraining order, consulting on employment issues, Starting program that provides training on legal rights.,
4Training Overview Identifying and Serving Child Trafficking Survivors Understanding the Legal FrameworkA. ImmigrationB. CriminalCriminal FrameworkVictim-Witness AdvocacyC. Civil Remedies
6Human Trafficking is a Modern Day Form of Slavery Victims trafficked for:Forced labor:Examples: restaurant work, agricultural work, domestic work, factory work, or illegal enterprises such as selling drugs and serving as decoys in smuggling cases.Sexual exploitation:Examples: prostitution, use in pornographyChild Trafficking:‘The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation constitutes ‘trafficking in persons’-Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, (“Protocol”), G.A. res. 55/25, annex II, 55 U.N. GAOR Supp. (No. 49) at 60, U.N. Doc. A/45/49 (Vol. I) (2001), Art. 3(c).Child Trafficking:‘The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation constitutes ‘trafficking in persons’-Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, (“Protocol”), G.A. res. 55/25, annex II, 55 U.N. GAOR Supp. (No. 49) at 60, U.N. Doc. A/45/49 (Vol. I) (2001), Art. 3(c).
7Human Trafficking is an Under Identified Crime Many people think of human trafficking as only an international problemVictims tend not to self-identify as trafficking victimsOften victims are deported before their full story is known
8Some Estimates as to the Scope of the Problem: In the U.S. 14,500-17,500 men, women and children trafficked annuallyAs many as 10,000 people in slavery like conditions in the Los Angeles area alone2 million people trafficked worldwide annually27 million people in slavery around the world$9 billion dollar business(United States Department of State, Trafficking in Persons Report, (TIP), June 2007)United States Department of State, Trafficking in Persons Report, (TIP), June 2007
9Numbers of Child Trafficking: The estimates on the number of immigrant children being trafficked into the country annually range from 7,000 to 17,000.An exact estimate is difficult to obtain given the scarcity of objective dataANDthe common practice of including women and children into one category.In a study on child sexual exploitation in the U.S., Los Angeles was acknowledged as a major point of entry and departure for trafficked immigrant children.However:The analysis did not uncover any estimates on the number of alien minors being trafficked into the Los Angeles area.The literature does not present much information on the nature and extent to which alien minors are being trafficked in LAC, though there are some circumstantial evidence that should be considered. Estes and Weiner, p. 114. Id.Numbers of Child Trafficking:The estimates on the number of alien minors being trafficked into the country annually range from 7,000 to 17,000. An exact estimate is difficult to obtain given the scarcity of objective data and the common practice of including women and children into one category. For example, John Miller, the Director of the U.S. Office to Monitor and Combat Trafficking In Persons, stated that 16,000 to 20,000 women and children were being trafficked across the U.S. border annually, but made no distinctions between the two sub-groups.LOS Angeles: In a study on child sexual exploitation in the U.S., Los Angeles was acknowledged as a major point of entry and departure for trafficked alien minors. The analysis did not uncover any estimates on the number of alien minors being trafficked into the Los Angeles area. The literature does not present much information on the nature and extent to which alien minors are being trafficked in LAC, though there are some circumstantial evidence that should be considered. Estes and Weiner, p. 114.
10Percentage of Child Trafficking Victims Around the World: CAST’s caseload for addressed ~4% child victims of human trafficking.US Government average is about 13% of cases identifiedFrom at pg 12
11Illustrating the need to identify and serve children victims From , only 131 child victims have been certified by the Federal government.Only 3 cases have been confirmed to be from the Los Angeles area prior to 2006.There is a great discrepancy between the estimates of alien minors trafficked into the U.S. annually and the actual cases identified.(http://www.usdoj.gov/ag/annualreports/tr2007/agreporthumantrafficing2007.pdf, 4)
12The Problem of Misidentification Children who have been trafficked are regularly misidentified by authorities and by service agencies.Why:Lack of systematic monitoring and reporting by agencies that work with at-risk youth.Once they are misidentified they are not given the special protection measures to which they are entitled.What we need:A collaborative effort between the community, law enforcement, and human services agencies.
13Describing the Problem: National Statistics Majority referred by law enforcement & government officialsNeed organizations that work with children to be able to better identify the issueSource: USCCB
14Describing the Problem: National Statistics Type of ExploitationCountry of originFigure 2 illustrates the type of exploitations these victims have endured in the United States. The majority of the identified minors have been victims of sex trafficking. Alien minors have also been exploited as laborers and domestic servants. Other can include adoptionsNote currently most ID of child traffciking vicitms come from law enforcement From The majority of the victims were discovered and identified by federal law enforcement officers, mostly through raids on brothels.This gives credence to the notion that some forms of exploitation – such as sex trafficking – are easier to uncover and respond to.Source: USCCB
15Survivor StoriesLily, a young Egyptian girl was freed from a couple’s home in Irvine, California, where she was forced to work as a domestic servant for two years. She was denied access to a formal education and was threatened with physical harm by the couple. At age 15, Sofia was promised a job as a waitress in America. She was told that she would make enough money to pay off her smuggling debts in no time. Her prospects at home seemed dim, so along with her older sister, she agreed to go to California. When they arrived, they were forced into a prostitution ring run by human traffickers.Jeffery, 16, was brought over to the U.S. by a family. He was told that he had to work for them at their store to pay off his travel debt. He worked eight hours a day, six days a week. He did not attend school. Eventually, the family told him to leave.Brandon, 17, from a Central American country was forced to sell drugs in the United States. He was eventually charged with drug trafficking in juvenile court. The Juvenile Justice System eventually found Brandon guilty of selling drugs.  U.S. Department of Justice, Press Release, February 2, 2005, “Irvine couple indicted on involuntary servitude charges for holding girl as virtual slave to serve their family,” (accessed on March 22,2006). This is a case study based on several interviews. The names, places, and dates have been changed to ensure the child’s confidentiality is strictly maintained. Case study derived from interview conducted on March 13, 1006 by telephone with anonymous social service provider. Identifying characteristics of the child, including, name, gender, and ethnicity are subject to change. This is a case study based on several interviews. The names, places, and dates have been changed to ensure the child’s confidentiality is strictly maintained.[
16Across the U.S.Plainfield, NJ: Four teenage girls, ages range from 14 to 18, were lured from their homes in Mexico by two Mexican nationals and forced to work in a brothel.Austin, TX: In 2003, two individuals were convicted for sex trafficking of children, along with other related crimes, for recruiting, smuggling, and forcing young girls from Mexico into prostitution.Silver Spring, MD: A Maryland couple was convicted for enslaving a young Cameroonian girl as a domestic servant for a 3-year period, during which time she was physically and sexually abused. U.S. Department of Justice. August 7, ““Madams" Sentenced to 210 Months in Prison for Forcing Mexican Teens into Prostitution in N.J.” Press Release. (accessed on April 22, 2006). U.S. Department of Justice. December 19, “Mexican Nationals Operating a Brothel Sentenced for Human Trafficking.” Press Release from U.S. Attorney’s Office Western District of Texas. (accessed on April 22, 2006). U.S. Department of Justice. December 20, “Maryland Couple Convicted of Enslaving Teenage Cameroonian Girl in their Home.” Press Release. (accessed on April 22, 2006).
18Human Trafficking Defined The term ''severe forms of trafficking in persons'' means:(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion,OR in which the person induced to perform such act has not attained 18 years of age; or(B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.(Victims of Trafficking and Violence Prevention Act of can be found atForced prostitution or if under 18 years old. Second part is definition of labor trafficking. Involve servitude specifically is and debt bondage—when debt that never goes down keeps growing. Involve servitude is when -forced to work another threats physical harm or restraint, through pattern or plan cause harm or restraint, or abuse of legal process. Debt bondage basically same as peonage.
20Common Misconceptions Trafficking requires the crossing of national or international bordersTrafficking only involves foreign nationals, not US citizensYou can consent to being traffickedCommon Misconceptions:Trafficking does not require International movement or movement across state borders.It can be used to prosecute domestic cases of trafficking-actually push under push administration. Not need to look for just non-citizens.The person consents to be smuggled/ or to labor to pay back a debt-not matter-point forced to work for one employer.Most important thing to look for if only limited time is the means—force fraud coercion—find that if have that than have the others
21The U.S. Side of Human Trafficking An unknown number of American citizens and legal residents are trafficked within the country.Forced to work in sexual servitude and forced labor.FBI debriefings of sex traffickers or pimps indicate that approx % of the victims forced or recruited into prostitution were juveniles.Source: Chris Swecker, FBI
22Local Resources To help access services/benefits: Ann Lane at Office of Refugee Resettlement :Service Providers who specialize in assisting US Citizen or LPR survivors:Covenant House, Los AngelesChildren of the Night, Los AngelesThe SAGE Project, Inc., San FranciscoNational Human Trafficking Resource Center (NHTRC)If the child would like to seek criminal charges:Trafficking in Persons and Worker ExploitationTask Force Complaint LineTVPRA of 2005:Establishes a pilot program of residential treatment facilities for minor victims of domestic trafficking in the United States.Establishes a grant program for states and local law enforcement to work with victim service providers to investigate and prosecute acts of domestic trafficking in persons.
23Trafficking versus Smuggling Contains the elements of force, fraud, or coercion (cannot consent to enslavement)Subsequent exploitation and/or forced laborThose trafficked are seen as victims by the lawSMUGGLING:No force, fraud, or coercionUnauthorized crossing of bordersThose smuggled are seen as criminals by the lawLabor Exploitation is a form of exploitation involving work. The difference is freedom of movement. Trafficked individuals are forced to remain in their situation under threat.
24What Constitutes Coercion? 22 U.S.C. § 7102 Coercion. The term "coercion" means-- (A) threats of serious harm to or physical restraint against any person; (B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or (C) the abuse or threatened abuse of the legal process.Force fraud—easy understand--definition what constitute coercion most important See that what constitute coercion is when no actually physical violence-direct threats==feel harm (usually to person or family or friends ), plan to make person believe (examples: told if leave will be kidnapped and have organs sold, or else threat dangerous America is an like to rape foreign women; however, also look not direct statements by trafficker—often ask if heard stories about boss other women-hear that women beaten when try to escape covered in blanket so no bruises or lese burned citigetteres. Also ask what they have seen=bosses or supervisor assaulting other women==even if not happened to them or not threatened), or threatening legal process-usually is I will have deported, or arrested) Prey on fact illegal status, and then also fear own police in own countries
26Things to Look for Especially in Juvenile Cases Substance abuseDenial of access to educationDenial of recreational activitiesNo peers/contact with others from outside worldAlready in the Juvenile Justice SystemFalse documents with incorrect age
27Key Identification Questions Recruitment/ Migration:Why did you come to the U.S.?Who arranged your travel?How did you get here?Do you owe money for your trip?What did you expect when you came?What did you end up doing?Were you scared?Identification:Do you have any papers?Who has them?Working Conditions:Are you in school?Are you working?What kind of work do you do?Are you paid?Do you owe money to your boss or someone else?Can you leave your job if you want?Living Environment:Where do you live?Who else lives there?Where do you sleep?Are you scared to leave?Coercion:Has anybody ever threatened you to keep you from running away?Has anybody ever hurt you to make you stay?Has you family been threatened?Recruitment—look for what told versus what actually was the deal—example told work as a waitress but actually work in prostitution, told work 8 hours, but work 14, told paid 500 a week but received nothingActual conditions once working—looking for way to show force fraud coercion element met.Favorite question is what would happen if tired to leave-say never could but ask just picture
28Initial Contact With Potentially Trafficked Persons Victims might often lie about their present circumstancesAND are unlikely to self-identify as trafficking victims.Establish that you:Have no power to order the person deportedDo not work for the government or policeWill not take any action without the client’s consentRepresent their interests and no one elseAlways use an interpreter even if some English is spokenAsk if there is a gender preferenceBe sure to build trustBe careful not to impose values or ideasBe knowledgeable and aware of your position of power in societyFind out if other victims are being heldBe suspicious of private attorneys paid for by trafficker
29Talking to Children: Limit the attorney to child ratio. Use only FLUENT interpreters.Sit next to, not across from the child.Ask open-ended, not leading questions.Let the child tell their story. Don’t interrupt, don’t finish their sentences, etc.Tolerate pauses, even if they are long.Be conscious of male/female dynamics & cultural differences, ie. eye contact.Be aware that abuse, trauma, and sexual assault may impact behavior and memory of trafficked minors.
30Redefine how you look at cases For example: DCFS defines exploitation as “any unethical use of [children] for one’s own advantage or profit.” See Los Angeles County Department of Children and Family Services (DCFS). “Assessment of Exploitation.”According to the Los Angeles County Department of Children and Family Services (DCFS) 100 child exploitation referrals were made in 2007
32Trafficking Victims Protection Trafficking Victims Protection Act of 2000 (TVPA) Under the TVPA Victims Of Human Trafficking are entitled to:SafetyPrivacyInformationLegal representationBe heard in courtMedical assistanceCompensation for damagesSocial assistanceSeek residenceReturn
33What Are The Options For Relief And Recovery? RepatriationImmigrationCriminal ProsecutionCivil Law RemediesMany options for relief—choose to stay or special immigration status. Criminal pros.mand. Restitution and also Reauthorization act created specific right to civil action. Have this in CA as well
34Family Reunification?Family reunification should be explored as a priorityEnsureclaimants are genuine family membersdo not have connection to the traffickerscapable of providing safety for the childDevelop a plan for identifying, assessing, and communicating with family in long-term care plans.
35Repatriation for Children “Return to the country of origin…shall in principle only be arranged if such return is in the best interests of the child.”  Paragraph 84 of Convention on the Rights of the Child General Comment No. 6
36In assisting unaccompanied minors return to their home country or a third country, the following must be ensured:The best interest of the child has to be the paramount consideration for all parties during the whole process (pursuant to the Convention on the Rights of the Child, and usually specified in the national laws or policy/practice of the referring country);Participation and the right of the child to express his or her views freely;The consent of the parent or legal guardian;Tracing of the family (so long as family tracing does not jeopardize the best interests of the child or the rights of the family members being traced);Sufficient information and counseling of the child and/or the guardian;Family assessment to determine the availability of family support (consent and ability of the family to care for the child) or an appropriate care provider as well as reintegration mechanisms in the receiving country;Depending on the laws in the referring country, the child should come under the protection of the social service institutions acting in loco parentis. Where this is so, permission must be sought from the agency concerned before the minor is removed from the country;Where there is suspicion of family-related trafficking, it is important that all due consideration be given to such an eventuality, and that a family assessment is made to clarify if family involvement was a factor in the trafficking process.IOM Direct Assistance for Victims of Trafficking Handbook at
37Repatriation Assistance For assistance arranging travel, purchasing air tickets, and child accompaniment contact:IOM WashingtonCarson Osberg1752 N Street NW Suite 700, Washington, DC 20036Phone: ext. 227 Fax:Link with NGO in country of repatriation to assess family situation, safety, available services, accompany client through immigration, etc.Follow-up with client as appropriate
38Immigration Status Provided by the TVPA Forms of Relief specific for Human Trafficking Victims:Temporary relief through Continued PresencePossibility to adjust status to become a legal permanent resident through T-Visa or U-Visa.Review a little about immigration benefit with you because-important in many clients decision if want to come forward.
39What Is Continued Presence? Provides temporary immigration relief to potential witnesses who are victims of severe forms of traffickingWork authorizationGood for 1 year but can be extendedFederal benefits for 8 monthsOnly Federal law enforcement agents can request continued presenceSince children do not have to cooperate with law enforcement-weigh risks and benefits prior to seeking this form of reliefIt is recommended to seek Continued Presence as it is a relatively fast method for receiving status
40What Is A T-Visa?Enables certain victims of human trafficking to live and work in U.S. for four yearsChildren can petition to bring parents and unmarried siblings under the age of 21 to the U.S.Can receive government benefits, including cash assistance for 8 monthsCan apply for Green Card after three yearsWarn clients can not leave US
41Who Is Eligible For A T-Visa? ELEMENTS:Is or has been a victim of severe form of trafficking in personsIs physically present in U.S. on account of such traffickingHas complied with reasonable request for assistance in the investigation or prosecution of acts of traffickingChildren under 18 do not need to meet this criterionWould suffer extreme hardship involving unusual and severe harm upon removal from U.S.There is no filing deadline for cases in which victimization occurred after October 28, 2000.Linked to law enforcement--although can self petition once reported-must have made effortNot that difficult-usually focused on trauma and physical harm as well as services available in US, and threat of relationhardship
42What Is Certification?Victims of a severe form of trafficking who have been certified by the Department of Health and Human Services (HHS) are eligible for benefits to the same extent as refugees such as:Federal and state public assistance benefits, such as Refugee Cash and Medical Assistance, Temporary Assistance for Needy Families (TANF), Medicaid, Supplemental Security Income (SSI), and Food StampsRefugee self-sufficiency Matching Grant Program and other ORR discretionary grant programs and ORR discretionary grant benefits programs for victims of trafficking
43Who Is Eligible For Certification? Individual must be determined to be a victim of a severe form of trafficking by a federal law enforcement agencyORHave filed and had a T-visa application approvedNote: In the case of minors ORR must verify the trafficking status before a letter of eligibility can be issued.The ORR must verify the trafficking status of an alien minor before a letter of eligibility can be issued, which is handled on a case-by-case basis. In 2004, an interagency memorandum of understanding (MOU) was agreed upon by the DOJ, DHS, and DHHS. The MOU outlines that the DHHS will seek the recommendations of the DOJ and DHS, before issuing a letter of eligibility or certification to human trafficking victims. This would include providing confidential information pertaining to child trafficking cases to federal law enforcement agencies. Many in the anti-trafficking community are against this practice, because it could lead to the ORR rejecting applications from trafficking victims who refuses to cooperate with law enforcement, which is a clear violation of the VTVPA. Regardless of these concerns, the ORR often relies on federal law enforcement to verify the trafficking status of alien minors, because it lacks the capacity to do so. Annie Sovcik interview. “Interagency Memorandum of Understanding between the Department of Health and Human Services, The Department of Homeland Security, and the Department of Justice.” It was signed by the deputy secretaries of DHHS and DHS, and the secretary Attorney General of the DOJ on 7/9/04. Please see Appendix D for more on this controversy.
44Access to CA State Benefits SB 1569 provides temporary and immediate access to social services for victims of human trafficking, domestic violence and other violent crimes prior to federal certification
45SB 1569 Eligibility A Victim of human trafficking who Is taking steps to file an application for T-Non immigration status visa (T-Visa) ORHas applied for a T-visa or U-visaGood that both victims eligible for T and U visa receive benefits—U visa holder never eligible for federal benefits
46What are the benefits?Refugee Cash Assistance (may be limited to 8 months state funded services, eligibility begins from date of the application for the benefits )Refugee Social Services (available for 60 months from the date of application for benefits)Food Stamps (8 months)CALWORKs (limited to a five-year period for adults. Aid begins the date of application)Cash Assistance Program for Immigrants (CAPI)Medi-CAL (8 months)You know more about the benefits than I do, but as you can see the list extensive. Also it is not just 8 month cap, some clients are eligible for longer.
47Establishing Eligibility Provide a sworn statement; andOne additional supporting document is requiredPolice, government agency, or court records or filesNews articlesDocumentation from the social services, trafficking or domestic violence program, or a legal, clinical, medical, or other professional from whom the applicant or recipient has sought assistance in dealing with the crimeA statement from any other individual with knowledge of the circumstances that provided the basis for the claimPhysical evidenceA copy of a completed visa applicationWritten notice from the federal agency of receipt of the visa applicationT-visa holder-even those who have not applied are eligibleNeed sworn statement-should be as limited as possible with NO facts about individual case. See sample. Name of person and uses definition of trafficking with signature2nd piece of information. The easiest
48Eligibility Cont’dDocumentation to show that a T-visa has been or will be filed:A receipt from U.S. Citizenship and Immigration Services (USCIS) that verifies an applicant has filedA copy of the application for T-VisaStatement from officials such as law enforcementStatement from a victim advocate who has assisted or is assisting the victim with the T-Visa applicationSee sample legal-this is most minimum. Actually can advocate that only need to provide this because fulfill both requires for showing will be filed and also that receiving services.
49Other Forms of Immigration Relief U VisaFor victims of certain criminal activity who suffered substantial physical or mental abuseAsylumFor persons who have suffered or fear persecution based on race, religion, nationality, political opinion or membership in a particular social group in country of originSpecial Immigrant Juvenile StatusChildren eligible for long-term foster care due to abuse, neglect or abandonment when return to home country not a viable optionViolence Against Women ActAllows certain battered immigrants to file for immigration relief without abuser’s assistance or knowledge
50U-Visa RequirementsBe a victim of an enumerated crime that occurred in the United States or its territoriesrape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of these crimesSuffered substantial physical or mental abuse as a result of being a victim of the crimePossess information concerning this criminal activityIs being, or is likely to be helpful in the investigation or prosecution.Law Enforcement Certification is Required to Apply
51U- Visa Child Specific Requirements If the applicant is a child under age 16, the parent, guardian or next friend of the applicant possesses information concerning this criminal activityIf the applicant is a child under age 16, the parent, guardian, or next friend has been, is being, or is likely to be helpful in the investigation or prosecution.
52AsylumAsylum: Fear persecution from the government or a group that it is unwilling or unable to control, based on the person’s race, religion, political opinion, nationality, or social group.
53Asylum-Child Specific The 1998 INS Guidelines for Children’s Asylum Claims state that the same standards apply to both adults and children seeking asylumINS Child Asylum Guidelines and regulations do allow for a few differences“the harm a child fears or has suffered, however, may be relatively less than that of an adult to still qualify as persecution.”child may be accessed differently than an adult when making the determination if there is a well-founded fear of persecutionFor example: Adjudicator is permitted to give more weight to objective factors because of children’s oftentimes inability to conceive of or articulate subjective apprehension.Children are exempt from the strict one year filing deadline for asylum applications. See 8 U.S.C. 1158(a)(2)(B); 8 C.F.R (a)(5)(iv)
54Special Immigrant Juvenile Status (SIJS) Requirements Declared dependent in a juvenile court or placed in the care of a child welfare agency;Must be under 21 and not marriedEligible for long-term foster care due to abuse, neglect or abandonment; andnot in the child’s best interest to be returned to his or her home country*** Sometimes the best option for children because a child can petition concurrently for Green CardFor additional Information: ILRC manual of SIJS available atPetition concurrently for:special immigrant juvenile statuspermanent residency (the green card).
55Violence Against Women Act (VAWA) Spouses and children of United States citizens or lawful permanent residents may either:Self-petition to obtain lawful permanent residencyORSeek cancellation of removal if they are in deportation proceedings
56VAWA Requirements-Child Specific In order to qualify for VAWA the child must establish that:The child has been battered by or been the subject of extreme cruelty committed by a parent who is a U.S. citizen or lawful permanent resident of the United States;The child has resided with the U.S. citizen or permanent resident parent at some point in time“resided” may include any period of visitationThe child has good moral characterchildren under 14 are presumed to have good moral characterThe child currently resides in the United States, with some exceptions.Even if the child herself was not abused, if her parent was abused and qualifies for this relief, the child may qualify as a “derivative” VAWA beneficiary.Exception: If living abroad, the child may still qualify if he/she was abused in the U.S. and the abusing parent is anemployee of the U.S. government or a member of the uniformed servicesThe Immigrant Legal Resource Center and Catholic Legal Immigration Network, Inc.(CLINIC) have published a comprehensive manual on immigration relief for abused immigrantsentitled, The VAWA Manual: Immigration Relief for Abused Immigrants. This manual can bedownloaded for free at
57Why apply for a T-Visa over other forms of relief? Asylum: If legal questions in the case there is a greater risk that the child will be referred to removal proceedingsSIJS: child cannot reunify with family membersU-Visa: minors or their family members must cooperate with law enforcement
59Federal Crimes 18 U.S.C. § 1581 Peonage (Debt Bondage) 18 U.S.C. § 1583 Enticement into slavery 18 U.S.C. § 1584 Sale into involuntary servitude18 U.S.C. § 1589 Forced Labor18 U.S.C. § 1590 Trafficking Into Servitude18 U.S.C. § 1591 Sex Trafficking18 U.S.C. § 1592 Document Servitude (up to 5 years)18 U.S.C. § 2251a Selling or Buying of Children18 U.S.C. § 2423 TransportationReason new crimes was needed is that SC had explicitly stated that involuntary servitude==needed physical violence, threats or scheme plans not enough-Forced labor and the Sex traffickingForced Labor: Whoever knowingly provides or obtains the labor or services of a person(1) by threats of serious harm to, or physical restraint against, that person or another person;(2) by means of any scheme plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint; or(3) by means of the abuse or threatened abuse of law or the legal process…”Trafficking into servitude: Recruiting, harboring, transporting, providing, or obtaining by any means any persons for labor or services in violation of laws prohibiting slavery, involuntary servitude, debt bondage, or forced labor.Sex Trafficking of Children or by Force, Fraud or Coercion:Whoever knowingly – in or affecting interstate or foreign commerce Recruits, entices, harbors, transports, provides, or obtains by any means a person; or benefits, financially or by receiving anything of value, from participation in a venture Knowing that force, fraud or coercion will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act…
60State Responses to Human Trafficking As of June 2008, 39 states have passed Criminal Anti-Trafficking Laws*8 States have pending criminal legislationMost state laws do not offer comprehensive protections like the TVPA*U.S Policy Alert, Polaris Project available at: project.org
61California State Law AB 22 Created a new felony Penal Code section which prohibits Human TraffickingPrioritized victim protection along with prosecutionBenefits victims include right to civil action, right to be eligible assistance from state restitution fund, prioritizing access to witness protection programs, mandatory training for police on trafficking, establishes human trafficking task force, special case worker privilege form human trafficking case managers Just recently passed in last couple months was SB 1569—which also made victims eligible to access social services in CA. Gave you a handout with a cheat sheet of all the relevant provisions. Also provided page with key definitions. Prior to AB —made slavery crime in CA—but understanding it was never used.
62236.1(d)1 Deprivation or Violation of Personal Liberty includes: Substantial and sustained restriction of another’s liberty accomplished throughfrauddeceitcoercionviolenceduressmenaceor threat of unlawful injury to victim or another reasonably believed likely to be carried outThis repeats definition of force fraud coercion saw in federal definition. Arguably is broader because includes duress. However, not certain what meant by substantial or sustained—since under fed—intent trafficker or even one day is enough
63236.1(d)(2) Duress includes: Knowingly:destroyingconcealingremovingconfiscatingpossessingAny actual or purported passport or immigration document of the victimSpecifically makes taking documents crime—under fed law not enough to take document say must work for me. Arguably under state law this would be enough
64Reporting a case to law enforcement Minors do NOT need to report cases to receive federal OR State benefits and immigration status.Some Minors may WANT to seek justiceEnsure they understand consequences of this decisionOnce come forward can be compelled to testifyMinors can be detained as material witnessesCould see increased threats to family in home countryLength of time involved in case can be one to two yearsMay need to talk about acts that expose her to criminal liability i.e.. prostitution, drugs, document fraud etc.
65Protecting Child Victim Witnesses involved in Federal Court Proceedings 18 U.S.C. §3509 Request a Guardian ad LitemRequest a Multidisciplinary Child Abuse TeamEnsure Documents are Filed Under SealRequest a Speedy TrialRequest that the Courtroom be ClosedRequest an Alternative to Live Testimonyclosed-circuit televisionvideotaped depositions
66Protecting Child Victim Witnesses Cont’d Resources:18 U.S.C. § lists all basic rights afforded crime victimsThe U.S. Department of Justice Attorney General Guidelines for Victim and Witness Assistance. Available at 18 U.S.C. 3771If you have questions about assisting a victim-witness in court proceedings contact:Susanna Cowen, Staff AttorneyNational Crime Victim Law Institute Lewis & Clark Law School (503)
67Civil LitigationBriefly Civil Litigation. Interested have more advanced course on this—which take own 2 hoursPhotos by J. Maillard, International Labour OrganizationPhotos by J. Maillard, International Labour Organization
68Why civil litigation?May be the only means by which victims of trafficking may be “made whole”Life-changingLaw enforcement declines to prosecuteDiscourages would-be-traffickers and employers exploiting trafficked labor
69Factors to consider when deciding whether to seek civil remedies Are there safety concerns for your client and his or her family?Are there statute of limitations issues?Are there potential defendants who have the resources to satisfy a judgment?Are there potential defendants located in the US?Is your client willing to endure years of traumatic litigation?If you don’t need to toll the statute of limitations, wait to file a civil action until the conclusion of the introduction of evidence in a parallel criminal case.
70Also Consider… Are there other potential plaintiffs? How will civil litigation impact the criminal case?Will civil litigation have any impact on your client’s immigration status?Will the criminal prosecutors seek restitution on behalf of your client and others?What resources do you need to take the case?
71Civil Cases-Child Specific If minor is considered incompetent to sue, statute of limitations may be tolled to preserve the causes of actionGuardian ad litem (for the lawsuit) can be appointed to act as representativeIf cause of action is a violation of labor laws, civil remedies can be pursued administrativelyPermission given for use by Kathleen Kim
72Possible Causes of Action Trafficking Victims Protection Act of 2003Implied rights of action under the Thirteenth Amendment and its enabling statuteCalifornia: AB 22 granted explicit right to civil action and treble damagesFair Labor Standards Act (FLSA)Alien Tort Claims ActMigrant and Seasonal Agricultural Worker Protection ActTitle VII of the Civil Rights ActCivil Rights Act of 1866 (“Section 1981”)Implied rights of Action Under the Thirteenth Amendment and its Enabling StatuteNeither the Thirteenth Amendment nor §1584 expressly provides a civil remedy for victims of involuntary servitude. A court may imply a private right of action if it determines Congress intended to create one by implication.To make a claim: must demonstrate that the defendant’s actions fit the definition of involuntary servitudeStatute of Limitations: §1584 doesn’t specify a statute of limitations. Supreme Court in North Star Steel Co. v. Thomas directs courts to borrow from the most analogous state law in the absence of a federal statute of limitations.Alien Tort Claims ActGrants federal jurisdiction for “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty in the US” and provides civil right of action To make a claim: Plaintiff must show that defendant violated a “specific, universal and obligatory” norm of international law.Since international law traditionally applied only to states, there are some restrictions regarding ATCA jurisdiction in cases brought against individuals or corporations.Statute of limitations: Not specified. Ninth Circuit in Papa v. US found that the 10-year SOL of the Torture Victims Protection Act applies to ATC claims.Fair Labor Standards Act Offers minimum wage and maximum hour protections. Coverage: Employees engaged in interstate commerce or the production of goods for interstate commerce- Undocumented workers-Domestic Service Workers Sex Workers -Farmworkers:- Relatives -Children Statute of Limitations:-Within 2 years after non-willful violations, -Within 3 years after willful violations Damages: Amount of employee’s unpaid wages and overtime, reasonable attorneys’ fees, injunctive relief, and punitive damages for some courts.
73Causes of Action-Child Specific The FLSA provides both added protections and exemptions for childrenOppressive Child LaborHour regulationAge limitationsRegulation of hazardous occupationsMajor ExemptionNo minimum age and hazardous job restrictions when child employed by his or her parent or person standing in parent’s place. Civil Penalties for Child Labor ViolationsFor each “oppressive child labor” violation, child worker is entitled to $11,000No private right of action for child labor violations so report to Department of Labor Used with permission of Kathleen Kim
74Legal Assistance Can Not Be Provided in a Vacuum Trafficked persons likely suffer from serious physical, psychological and possibly sexual abuse.An extensive network of culturally and linguistically appropriate services providers is required to meet their urgent and acute needs.InterpretationHousing, food & clothingMedical care (emerg. & long term) & health educationMental health careLegal & immigration servicesESL trainingIndependent living skillsSafety planningJob placement & employment educationHuman rights education
75If you identify a trafficking survivor please contact Stephanie Richard, Managing Attorney Coalition to Abolish Slavery & Trafficking (CAST) (213) ext. 115