An Introduction to Child Trafficking for Legal Service Providers: Identifying and Serving Survivors Coalition to Abolish Slavery & Trafficking El Monte Sweatshop Workers, 1995 LA Times Stephanie Richard, Managing.
Download ReportTranscript An Introduction to Child Trafficking for Legal Service Providers: Identifying and Serving Survivors Coalition to Abolish Slavery & Trafficking El Monte Sweatshop Workers, 1995 LA Times Stephanie Richard, Managing.
An Introduction to Child Trafficking for Legal Service Providers: Identifying and Serving Survivors Coalition to Abolish Slavery & Trafficking El Monte Sweatshop Workers, 1995 LA Times Stephanie Richard, Managing Attorney(213) 365-1906 ext. 115 [email protected] www.castla.org Founded in 1998 in response to El Monte Sweatshop. Mission: to assist persons trafficked for the purpose of forced labor and slaverylike practices and to work toward ending all instances of such human rights violations. CAST 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 Training Overview 1. Identifying and Serving Child Trafficking Survivors 2. Understanding the Legal Framework A. B. C. Immigration Criminal Criminal Framework Victim-Witness Advocacy Civil Remedies Dimensions of Child Trafficking Adapted from: CAST Presentation © Freedom Network 2003 Photos by J. Maillard, International Labour Organization Photos by J. Maillard, International Labour Organization Human 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 pornography 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). Human Trafficking is an Under Identified Crime Many people think of human trafficking as only an international problem Victims tend not to self-identify as trafficking victims Often victims are deported before their full story is known Some Estimates as to the Scope of the Problem: In the U.S. 14,500-17,500 men, women and children trafficked annually As many as 10,000 people in slavery like conditions in the Los Angeles area alone 2 million people trafficked worldwide annually 27 million people in slavery around the world $9 billion dollar business (United States Department of State, Trafficking in Persons Report, (TIP), June 2007) Numbers of Child Trafficking: The estimates on the number of immigrant children being trafficked into the country annually range from 7,000 to 17,000.[1] 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. 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.[1] 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. Percentage of Child Trafficking Victims Around the World: Percentage of Minor Victims Within Global Statistics of Trafficking Victims 100 90 80 70 60 50 40 30 20 10 0 U.S. Government •CAST’s caseload for 2007-2008 addressed ~4% child victims of human trafficking. UNODC ILO From http://www.gao.gov/new.items/d06825.pdf at pg 12 •US Government average is about 13% of cases identified Illustrating the need to identify and serve children victims From 2001-2007, only 131 child victims were 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) Survivor Stories Lily, 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. [1] 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.[2] 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.[3] 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. [4] [1] 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,” http://losangeles.fbi.gov/dojpressrel/pressrel05/ibrahimabdel020205.htm (accessed on March 22,2006). [2] 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. [3] 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. [4] 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. Identifying Survivors of Child Trafficking Adapted from: CAST Presentation © Freedom Network 2003 Photos by J. Maillard, International Labour Organization Photos by J. Maillard, International Labour Organization Human 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 2000 can be found at www.ojp.usdoj.gov/vawo/laws/vawo2000/) Three Elements of Trafficking ACTS 1 Recruiting OR Harboring OR Moving OR Obtaining MEANS 2 END 3 For the purposes of by Force OR Fraud OR Coercion a person, © Coalition to Abolish Slavery & Trafficking (CAST), 2006. All Rights Reserved. Involuntary Servitude OR Debt Bondage OR Slavery OR Sex Trade Common Misconceptions Trafficking requires the crossing of national or international borders Trafficking only involves foreign nationals, not US citizens You can consent to being trafficked The 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. 20-40% of the victims forced or recruited into prostitution were juveniles. Source: Chris Swecker, FBI Local Resources To help access services/benefits: Ann Lane at Office of Refugee Resettlement : 1-202-401-4732 [email protected] Service Providers who specialize in assisting US Citizen or LPR survivors: Children of the Night, Los Angeles 818 908-4474 Covenant House, Los Angeles 323 461-3131 The SAGE Project, Inc., San Francisco 415 905-5050 National Human Trafficking Resource Center (NHTRC) 1-888-3737-888 If the child would like to seek criminal charges: Trafficking in Persons and Worker Exploitation Task Force Complaint Line 1-888-428-7581 Trafficking versus Smuggling TRAFFICKING: Contains the elements of fraud, force, or coercion (cannot consent to enslavement) SMUGGLING: No force, fraud, or coercion Unauthorized crossing of borders Those smuggled are seen as criminals by the law Subsequent exploitation and/or forced labor Those trafficked are seen as victims by the law What 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. Modern-Day Slavery: A Prison Without Walls Along with: Physical / Psychological / Sexual abuse/ Physical threats Look for: Long hours Little/No pay Withholding documents Threats of deportation Threats to family members in home country Isolation Inhumane Living Conditions Denial of access to healthcare services Having to work when sick Not able to refuse customer requests © Coalition to Abolish Slavery & Trafficking (CAST), 2006. All Rights Reserved. Things to Look for Especially in Juvenile Cases Substance abuse Denial of access to education Denial of recreational activities No peers/contact with others from outside world Already in the Juvenile Justice System False documents with incorrect age Key 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? 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 your family been threatened? 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? Initial Contact With Potentially Trafficked Children Victims might often lie about their present circumstances AND are unlikely to self-identify as trafficking victims. Establish that you: Always use an interpreter even if some English is spoken Have no power to order the person deported Do not work for the government or police Will not take any action without the client’s consent Represent their interests and no one else Ask if there is a gender preference Be sure to build trust Be careful not to impose values or ideas Be knowledgeable and aware of your position of power in society Find out if other victims are being held Be suspicious of private attorneys paid for by trafficker Understanding the Legal Framework Adapted from: CAST Presentation © Freedom Network 2003 Photos by J. Maillard, International Labour Organization Photos by J. Maillard, International Labour Organization Trafficking Victims Protection Act of 2000 (TVPA) Under the TVPA Victims Of Human Trafficking are entitled to: Safety Privacy Information Legal representation Be heard in court Medical assistance Compensation for damages Social assistance Seek residence Return What Are The Options For Relief And Recovery? Repatriation Immigration Criminal Civil Prosecution Law Remedies Family Reunification? Family reunification should be explored as a priority Ensure: claimants are genuine family members do not have connection to the traffickers capable of providing safety for the child Develop a plan for identifying, assessing, and communicating with family in longterm care plans. Repatriation Obtain identification and travel documentation For assistance arranging travel, purchasing air tickets, and child accompaniment contact: IOM Washington Carson Osberg 1752 N Street NW Suite 700, Washington, DC 20036 E-mail: [email protected], Phone: 202 862 1826 ext. 227 , Fax: 202 862 1879 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 Immigration Status Provided by the TVPA Forms of Relief specific for Human Trafficking Victims: Temporary relief through Continued Presence Possibility to adjust status to become a legal permanent resident through T-Visa or U-Visa. What Is Continued Presence? Provides temporary immigration relief to potential witnesses who are victims of severe forms of trafficking: Work authorization Good for 1 year but can be extended Federal benefits for 8 months Only Federal law enforcement agents can request continued presence Since children do not have to cooperate with law enforcement-weigh risks and benefits prior to seeking this form of relief What Is A T-Visa? Enables certain victims of human trafficking to live and work in U.S. for four years Children 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 months Can apply for Green Card after three years Who Is Eligible For A T-Visa? ELEMENTS: Is or has been a victim of severe form of trafficking in persons Is physically present in U.S. on account of such trafficking Has complied with reasonable request for assistance in the investigation or prosecution of acts of trafficking Children under 18 do not need to meet this criterion Would suffer extreme hardship involving unusual and severe harm upon removal from U.S. What 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 Stamps Refugee self-sufficiency Matching Grant Program and other ORR discretionary grant programs and ORR discretionary grant benefits programs for victims of trafficking Who Is Eligible For Certification? Individual must be determined to be a victim of a severe form of trafficking by a federal law enforcement agency OR Have filed and had a T-visa application approved Note: In the case of minors ORR must verify the trafficking status before a letter of eligibility can be issued. Access 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 SB 1569 Eligibility A Victim of human trafficking who Is taking steps to file an application for T-Non immigration status visa (T-Visa) OR Has applied for a T-Visa or U-Visa Establishing Eligibility Provide a sworn statement; and One additional supporting document Letter from attorney stating that they are taking steps to file a T-visa application is sufficient Review County Eligibility Letter for greater details. Available at: http://www.dss.cahwnet.gov/getinfo/acl06/pdf /06-60.pdf Other Forms of Immigration Relief U Visa For victims of certain criminal activity who suffered substantial physical or mental abuse Asylum For persons who have suffered or fear persecution based on race, religion, nationality, political opinion or membership in a particular social group in country of origin Special Immigrant Juvenile Status Children eligible for long-term foster care due to abuse, neglect or abandonment when return to home country not a viable option Violence Against Women Act Allows certain battered immigrants to file for immigration relief without abuser’s assistance or knowledge U-Visa Requirements Be a victim of an enumerated crime that occurred in the United States or its territories rape; 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 crimes Suffered substantial physical or mental abuse as a result of being a victim of the crime Possess information concerning this criminal activity Is being, or is likely to be helpful in the investigation or prosecution. Law Enforcement Certification is Required to Apply U- 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 activity If 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. Asylum Asylum: 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. Asylum-Child Specific The 1998 INS Guidelines for Children’s Asylum Claims state that the same standards apply to both adults and children seeking asylum INS 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 persecution For 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. 208.4(a)(5)(iv) Special 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 married Eligible for long-term foster care due to abuse, neglect or abandonment; and not 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 Card For additional Information: ILRC manual of SIJS available at http://www.ilrc.org/resources/sijs/sijs_manual_2005_complete.php Violence Against Women Act (VAWA) Spouses and children of United States citizens or lawful permanent residents may either: Self-petition to obtain lawful permanent residency OR Seek cancellation of removal if they are in deportation proceedings VAWA 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 visitation The child has good moral character children under 14 are presumed to have good moral character The 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. Why 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 proceedings SIJS: child cannot reunify with family members U-Visa: minors or their family members must cooperate with law enforcement Criminal Prosecution: Federal State Your role as a Victim-Witness Advocate Adapted from: CAST Presentation © Freedom Network 2003 Photos by J. Maillard, International Labour Organization Photos by J. Maillard, International Labour Organization Federal 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 servitude 18 U.S.C. § 1589 Forced Labor 18 U.S.C. § 1590 Trafficking Into Servitude 18 U.S.C. § 1591 Sex Trafficking 18 U.S.C. § 1592 Document Servitude (up to 5 years) 18 U.S.C. § 1590 Trafficking Into Servitude 18 U.S.C. § 1591 Sex Trafficking 18 U.S.C. § 2251a Selling or Buying of Children 18 U.S.C. § 2423 Transportation State Responses to Human Trafficking As of June 2008, 39 states have passed Criminal Anti-Trafficking Laws* 8 States have pending criminal legislation Most state laws do not offer comprehensive protections like the TVPA *U.S Policy Alert, Polaris Project available at: www.polaris project.org California State Law AB 22 Created a new felony Penal Code section 236.1 which prohibits Human Trafficking Prioritized victim protection along with prosecution Reporting 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 justice Ensure they understand consequences of this decision Once come forward can be compelled to testify Minors can be detained as material witnesses Could see increased threats to family in home country Length of time involved in case can be one to two years May need to talk about acts that expose her to criminal liability i.e.. prostitution, drugs, document fraud etc. Protecting Child Victim Witnesses involved in Federal Court Proceedings 18 U.S.C. §3509 Request a Guardian ad Litem Request a Multidisciplinary Child Abuse Team Ensure Documents are Filed Under Seal Request a Speedy Trial Request that the Courtroom be Closed Request an Alternative to Live Testimony closed-circuit television videotaped depositions Protecting Child Victim Witnesses Cont’d Resources: 18 U.S.C. § 3771 lists all basic rights afforded crime victims The U.S. Department of Justice Attorney General Guidelines for Victim and Witness Assistance. Available at www.usdoj.gov/olp/final.pdf 18 U.S.C. 3771 If you have questions about assisting a victim-witness in court proceedings contact: Susanna Cowen, Staff Attorney National Crime Victim Law Institute Lewis & Clark Law School (503) 768-6853 www.ncvli.org Civil Litigation Photos by J. Maillard, International Labour Organization Photos by J. Maillard, International Labour Organization Why civil litigation? May be the only means by which victims of trafficking may be “made whole” Life-changing Law enforcement declines to prosecute Discourages would-be-traffickers and employers exploiting trafficked labor Factors 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? Also 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? Possible Causes of Action Trafficking Victims Protection Act of 2003 Implied rights of action under the Thirteenth Amendment and its enabling statute California: AB 22 granted explicit right to civil action and treble damages Fair Labor Standards Act Alien Tort Claims Act Migrant and Seasonal Agricultural Worker Protection Act Title VII of the Civil Rights Act Civil Rights Act of 1866 (“Section 1981”) Legal 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. Interpretation Housing, food & clothing Medical care (emerg. & long term) & health education Mental health care Legal & immigration services ESL training Independent living skills Safety planning Job placement & employment education Human rights education If you identify a trafficking survivor please contact Stephanie Richard, Managing Attorney Coalition to Abolish Slavery & Trafficking (CAST) (213) 365-1906 ext. 115 [email protected] www.castla.org Copyright Notice © All rights reserved 2008. No part of this training curriculum may be reproduced, transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior expressed written permission of Coalition to Abolish Slavery & Trafficking (CAST).