FREEDOM FOR ALL: A PRACTICAL INTRODUCTION TO HUMAN TRAFFICKING AND WHAT YOU CAN DO IN YOUR PRACTICE AREA

Transcription

1 FREEDOM FOR ALL: A PRACTICAL INTRODUCTION TO HUMAN TRAFFICKING AND WHAT YOU CAN DO IN YOUR PRACTICE AREA Presented by the American Bar Association Commission on Domestic & Sexual Violence and Center for Professional Development

2 American Bar Association Center for Professional Development 321 North Clark Street, Suite 1900 Chicago, IL Submit a Question Visit to submit a question on the content of this course to program faculty. We ll route your question to a faculty member or qualified commentator in 2 business days. The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of the American Bar Association Commission on Domestic & Sexual Violence or Center for Professional Development unless adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only American Bar Association. All rights reserved. This publication accompanies the audio program entitled Freedom for All: A Practical Introduction to Human Trafficking and What You Can Do in Your Practice Area broadcast on January 9, 2017 (event code: CE1701FSS).

3 Welcome Freedom for All: A Practical Introduction to Human Trafficking and What You Can Do in Your Practice Area Monica Modi Khant, Executive Director, Georgia Asylum & Immigration Network Jane Anderson, Attorney Advisor, AEquitas: The Prosecutors' Resource on Violence Against Women Catherine Longkumer, Project Manager: Human Trafficking Initiative, The Legal Aid Society of Metropolitan Family Services Register for more FREE CLE FREEDOM FOR ALL A Practical Introduction to Human Trafficking and What You Can Do in Your Practice Area

4 SUPPORT This project was supported by Grant No TA-AX-K024 awarded by the U.S. Department of Justice, Office on Violence Against Women (OVW). The opinions, findings, and conclusions, or recommendations expressed in this presentation are those of the authors and do not necessarily reflect the views of the Department of Justice. FAIR USE This presentation includes the creative work of others. This property is being used by permission or under claim of fair use (17 USC 107). This presentation was created pursuant to fair use guidelines and further use or distribution is prohibited.

5 PRESENTERS JANE ANDERSON ATTORNEY ADVISOR MONICA KHANT EXECUTIVE DIRECTOR MODERATOR CATHERINE LONGKUMER METROPOLITAN FAMILY SERVICES

6 GAIN s mission is to provide quality free legal representation to asylum seekers and immigrant victims of human trafficking, domestic violence, sexual assault, and other crimes through direct representation and pro bono referrals.

7 OBJECTIVES Identify cases of human trafficking Analyze federal and state definitions of human trafficking Articulate immigration relief options for victims of trafficking Coordinate with allied professionals on cases involving victims of trafficking

8 Authors: Kavitha Sreeharsha Kelly Hyland Publisher: ABA Book Publishing spx?productid= HUMAN TRAFFICKING STATUTES

9 STATUTORY ANALYSIS Act Means Purpose FEDERAL CONTEXT Act Recruitment Harboring Transportation Provision Obtaining of another Means Force Fraud Coercion Purpose Commercial Sexual Activity Exploitation Labor Services 22 U.S.C.A (9) & (10)

10 SEX TRAFFICKING OF A CHILD Act Recruitment Harboring Transportation Provision Obtaining of another Means Force Fraud Coercion Purpose Commercial Sex Act 22 U.S.C.A (9)(A) & (10) SEX TRAFFICKING OF A CHILD Means Force Fraud Coercion Under the TVPA, if a minor engages in commercial sexual activity, that minor is a victim of sex trafficking

11 VARIANCES BETWEEN STATUTES POINTS OF INTEREST Definition of commercial sexual activity How the law treats minor victims of labor trafficking Definitions of force, fraud, and coercion

12 CO-OCCURRING CRIMES Domestic Violence Crimes Witness Tampering Sexual Assault Prostitution Child Pornography Custody Interference Organized Crime

13 HUMAN TRAFFICKING Modes, Means, and Methods Misperceptions Misunderstanding Misidentification

14 DEMYSTIFICATION Victims are often U.S. citizens Offenders use sophisticated psychological methods to assert power & control Offenders prey upon vulnerable persons in our communities Trafficking happens everywhere 53% of women entered prostitution with a pimp; more than 80% became involved over time. E. Giobbe, A Comparison of Pimps and Batterers, 1 MICHIGAN JOURNAL OF GENDER AND LAW (1993) 13,481 sex trafficking cases reported Polaris Project s National Hotline. Sex Trafficking, Statistics, National Human Trafficking Resource Center, (Last visited July 29, 2015) Victims are often previously abused, neglected. HEATHER CLAWSON ET AL., U.S. DEP T OF HEALTH AND HUMAN SERVICES, MAN TRAFFICKING INTO AND WITHIN THE UNITED STATES: A REVIEW OF THE LITERATURE (2009)

15 VICTIM PROFILE Vulnerability Victimization RECRUITMENT Identify vulnerable person Listen to their hopes & dreams Promise that their dreams can come true it will only take a short-term sacrifice

16 Pimp Gang Family Family Loyalty Acceptance Love LABOR TRAFFICKING Labor Trafficking Sex Trafficking Sexual Assault

17 INDUSTRIES & VENUES Regulated & unregulated industries Low-wage industries Hidden & public Sexual services & non-sexual services Gender differences by venue 4% trafficked in multiple venues Private Residence/Domestic Servitude 37% Agriculture 19% Restaurants 14% Hospitality 10% Construction 10% Carnivals/Fairs 7% Factories 4% Assisted Living 3% Strip Clubs 2% Massage Parlors 1% HOW ARE TRAFFICKERS ABLE TO CONTROL VICTIMS?

18 Used with permission from Polaris Project. This wheel was adapted from the Domestic Abuse Intervention Project s Duluth Model Power and Control Wheel VICTIM BEHAVIOR Loyalty to exploiter Hardened exterior Uncooperative and abusive Violent Manipulative (street savvy) Complex trauma and PTSD symptoms American Psychological Association, Report on the Task Force on Human Trafficking of Women and Girls, Executive Summary (2014)

19 COMPOUND TRAUMA Neglected Abused Physical Emotional Sexual Abandoned Unstable or uncertain home lives All BEFORE the trafficking begins IDENTIFYING TRAFFICKING Various Practice Areas

20 RED FLAGS Vulnerable populations homeless, LGBTQ youth, immigrant Tattoos aka branding: Daddy/King/Prince, $, roses, lips on visible body parts such as neck/chest/arms; Not in control of their money or documents; Not aware of their location; moves frequently; Recruited to work under false pretenses; Someone else speaks for them; overly submissive, won t look person in the eyes Labor & Employment Criminal Law Civil Immigration Trafficking Legal Aid

21 IMMIGRATION Sex and labor trafficking victims 71% of labor trafficking victims entered the U.S. legally, but did not have legal status by the time they disclosed Identify high risk industries within your jurisdiction Labor trafficking victims tend to be older and more likely to be men IMMIGRATION OPTIONS FOR VICTIMS OF HUMAN TRAFFICKING T Visa U Visa Asylum Special Immigrant Juvenile Status (SIJS)

22 ORIGINS OF THE T AND U VISA In 2000, the Victims of Trafficking and Violence Protection Act (22 U.S.C. 7104) was passed, enacting two new visas: T Visa U Visa Dual Purpose: Assist Law Enforcement Protect and Assist the Victims GENERAL FACTS OF T AND U VISA T Visa A visa granted to victims of human trafficking (via the federal statute) Grants status for 4 years *May File for adjustment of status 3 years into visa U Visa A visa granted to victims of state crimes (could also be the state statute of trafficking) Grants status for 4 years *May File for adjustment of status 3 years into visa Can apply for qualifying family members If over 21 (Spouse, Children under 21) If under 21 (Spouse, Children, Parents, and Siblings under 18) Can apply for qualifying family members If over 21 (Spouse, Children under 21) If under 21 (Spouse, Children, Parents, and Siblings under 18) 5,000 visas available annually 2012: 674 of 885 (76%) approved* 10,000 visas available annually 2012: 10,122/24,768 (41%) approved* *Office of Performance and Quality (OPQ), Data Analysis and Reporting Branch (DARB) AC, Report Date: December 14, 2012

23 TIMELINE FOR THE T AND U VISA 4 YEARS Duration of U / T Non-Immigrant Visa AFTER 3 YEARS WITH VISA Apply for Greencard AFTER 5 YEARS WITH GREENCARD Apply for US Citizenship BENEFITS OF THE T AND U VISA T Visa While Application is Pending: Work Authorization Driver s License Social Security Card Food Stamps Medicaid Cash Assistance U Visa While Application is Pending: None After Application is Approved: All of the above After Application is Approved: Work Authorization Driver s License Social Security Card

24 T-VISA ELIGIBILITY 1. Must be present in the US, American Samoa, or the Commonwealth of Northern Mariana Islands on account of the trafficking 2. Must be a victim of a severe form of trafficking 3. Have complied with requests for assistance in investigation or prosecution 4. Show he/she would suffer extreme hardship involving unusual and severe harm if deported CONTINUED PRESENCE (CP)

25 U-VISA U-VISA ELIGIBILITY 1. Must be a victim of a qualifying crime 2. Possess information about the crime 3. Crime must have violated the laws of the United States or occurred in the U.S. 4. Suffered substantial physical or mental harm 5. Has been, is being, or is likely to be helpful in the investigation or prosecution of the crime;

26 DIRECT VICTIM Victim is directly and proximately harmed by qualifying criminal activity INDIRECT Victim is deceased due to murder or manslaughter, applicant suffers substantial or physical harm from witnessing a qualifying crime, or is incompetent or incapacitated EX: child under the age of 16 QUALIFYING CRIME DV battery Rape Sexual assault Torture Trafficking Kidnapping False imprisonment Manslaughter Murder Involuntary servitude Witness to tampering Abduction Domestic violence Incest Female genital mutilation Being held hostage Slave trade Perjury OR attempt, conspiracy, or solicitation; OR any similar criminal activity

27 WHAT TO FILE Cover Letter T Visa Form G-28 -Notice of Entry of Appearance Cover Letter U Visa Form G-28- Notice of Entry of Appearance Form I-914 T visa Form Form I-914 Supp A (derivatives) Form I-914 Supp B (Law Enforcement Certification) Victim s Personal Declaration/Affidavit Proof of Identity Form I-192, Waiver of Inadmissibility (if applicable) Form I-912, Fee Waiver (if applicable) Credible Secondary Evidence Police reports, court documents, TPO Affidavits from Advocates, therapists, family Medical records or photos of injuries Anything creative Form I-918 U visa Form Form I-918 Supp A (derivatives) Form I-918 Supp B (Law Enforcement Certification) Victim s Personal Declaration/Affidavit Proof of Identity Form I-192, Waiver of Inadmissibility (if applicable) Form I-912, Fee Waiver (if applicable) Credible Secondary Evidence Police reports, court documents, TPO Affidavits from Advocates, therapists, family Medical records or photos of injuries Anything creative (3) Passport Photos per applicant (2) Passport Photos Per applicant

28 OTHER IMMIGRATION OPTIONS General Facts of Asylum An immigration status for those who have a reasonable fear of persecution in their home country. Need to show that their fear is based on their membership in one of the five protected classes: national origin, race, religion, social group, and political opinion. Grants status for 1 year *May file for adjustment of status after 1 year. Can apply for qualifying family members. General Facts of Special Immigrant Juvenile Status (SIJS) An immigration status for juveniles up to age 21 who are declared a dependent of juvenile court. An option for juveniles for whom parental reunification is not viable because of abuse, neglect or abandonment. Grants status indefinitely * May file for adjustment of status immediately. Cannot apply for qualifying family members. CRIMINAL LAW PROSECUTION Screen cases Juvenile Delinquency Dependency Domestic Violence Prostitution Cross-training with law enforcement DEFENSE Include questions at intake to identify red flags Collaborate with service providers Assert affirmative defenses Mitigation

29 LABOR & EMPLOYMENT Unfair labor practices can easily turn into human trafficking Identify high risk venues for trafficking; e.g. agricultural, hospitality, and construction Partner with federal agencies, such as the DOL and EEOC CIVIL LAW Civil remedies for victims of trafficking exist in federal law and in most states Financial investigations may be required to identify trafficker s funds Pro bono opportunities

30 LEGAL AID Expungements / Motions to vacate convictions incurred when trafficked Applying for benefits Access to affordable housing Removing images from the internet Civil protection orders COORDINATED RESPONSE

31 SUPPORTING VICTIMS Physical health services Legal services Emergency food Emergency and longterm housing English language classes Education Mental health services Immigration representation Dental services Crime Victim Compensation Fund application Job training Transportation Case Management

32 GOING FORWARD Screen cases within your practice area to identify red flags of trafficking Analyze trafficking statutes that may apply to your practice area Refer victims for appropriate immigration relief options Work collaboratively to combat trafficking QUESTIONS?

33 Jane Anderson Attorney Advisor 1100 H Street NW, Suite 310 Washington, DC P: (202) F: (202) janderson@aequitasresource.org Monica Modi Khant Executive Director Georgia Asylum & Immigration Network (GAIN) 1180 Peachtree Street, NE 40th Floor Atlanta, GA mkhant@georgiaasylum.org (w) (fax) Office Hours (M,T,W,F)

34 Catherine Longkumer, Esq. Project Manager Human Trafficking Initiative Supervising Attorney Victim Legal Assistance Network Metropolitan Family Services Legal Aid Society One N. Dearborn Ste 1000, Chicago, IL P: (direct) F: Thank you for joining us Register now for the upcoming program in the series! Beyond A Protection Order: Tort Law Litigation for Victims of Domestic and Sexual Violence Monday, February 13, :00 PM 2:35 PM ET