Representing Survivors of Human Trafficking: A Promising Practices Handbook [2 ed.]

Table of contents :
Acknowledgements
Author Biographies
Table of Contents
Chapter 1: Introduction
Chapter 2: Team-Based Perspective on Addressing Human Trafficking Survivors
§ 2.1 Introduction
§ 2.2 San Francisco Model
§ 2.3 San Jose Model
Chapter 3: Trafficking Basics
§ 3.1 Identifying Potential Victims of Human Trafficking
§ 3.2 Who Is Trafficked to and within the United States?
§ 3.3 Who Are the Traffickers?
§ 3.4 How Does Recruitment Happen?
§ 3.5 What Kinds of “Industries” Are Involved in Human Trafficking?
§ 3.6 What Kind of Obstacles Do Victims Face When Seeking Help?
§ 3.7 Understanding Intersections between Labor Exploitation, Smuggling, and Human Trafficking
Chapter 4: The Stages of a Human Trafficking Case and the Needs of the Survivor
§ 4.1 Overview
§ 4.2 Emergency Stage
§ 4.3 Non-Emergent Crisis Stage
§ 4.4 Stabilization
§ 4.5 Integration
Chapter 5: Parallel Legal and Non-Legal Proceddings and Their Impact on Your Case
§ 5.1 Immigration Track
§ 5.2 Criminal Track: Overview
§ 5.3 Criminal Track: Protecting Crime Victims
§ 5.4 Criminal Track: Sentencing and Victim Impact Statements
§ 5.5 Civil Track: Overview
§ 5.6 Defense against Discovery
§ 5.7 Restitution
§ 5.8 Settlement Agreements
§ 5.9 Structuring Damages with Public Benefits and Taxes
§ 5.10 Non-Legal Survivor Services
Chapter 6: Identifying and Developing the Team Members, Collaborators and Resources
§ 6.1 Law Enforcement Agencies (Federal and Local)
§ 6.2 Housing: Emergency Shelter, Short-Term, Transitional and Long-Term Options
§ 6.3 Social Service Providers and Case Management
§ 6.4 Health Services: Mental, Physical, Reproductive, and Dental Health
§ 6.5 Legal: Criminal, Civil, Immigration, and Employment Rights
§ 6.6 New Partners/Changing Personnel in Coalitions and Task Forces
§ 6.7 Government Entities
§ 6.8 Collaboration with International Office of Migration (IOM)
§ 6.9 Working with Consular Offices and Embassies
§ 6.10 Language and Culture
§ 6.11 Funds for Necessities
§ 6.12 Continuing Communication and Development of Working Relationship
Chapter 7: Practical Challenges in a Trafficking Case
§ 7.1 Establishing Baseline Protocols for the Team
§ 7.2 Law Enforcement: Role, Goal, and Limits
§ 7.3 Request for the Client’s Declaration
§ 7.4 Interviews with Law Enforcement
§ 7.5 Housing
§ 7.6 Case Management
§ 7.7 Health Services
§ 7.8 Legal
§ 7.9 Government Agencies
§ 7.10 Language and Culture
§ 7.11 Funders
§ 7.12 Conflicts of Interest
§ 7.13 Information Keeping and Sharing
§ 7.14 Safety Concerns (Client/Agency Personnel)
Chapter 8: Protocols Regarding Discovery of a Human Trafficking Survivor
§ 8.1 Designating a Point Person
§ 8.2 Notification of Impending Law Enforcement Action
§ 8.3 Phone Tree to Activate Service Providers
§ 8.4 Coordinating Logistics of Intakes, First Contact with Potential Survivors, Assignments
§ 8.5 Presence of Advocate(s)
§ 8.6 On-Site Intakes
§ 8.7 Assessment
§ 8.8 Protecting Shelter Anonymity
§ 8.9 Relocation of Survivor(s)
§ 8.10 Separation from Traffickers
§ 8.11 Debriefing as a Team
§ 8.12 Scenarios in Which This Occurs
§ 8.13 Activation of Service Providers
§ 8.14 Report to Law Enforcement
§ 8.15 Mobilizing Your Team
§ 8.16 Identifying Emergency Needs (Safety, Health, Family Safety, Shelter)
§ 8.17 Good Samaritans
Chapter 9: Agency Preparation for Human Trafficking Cases
§ 9.1 Scope of Representation or Services
§ 9.2 Practical Tools
§ 9.3 Media Policy and/or Protocol
Chapter 10: Special Considerations Representing Minors, Survivors in Criminal, Detention, and Removal Proceedings, and Witnesses
§ 10.1 Interviewing and Communicating with Minors
§ 10.2 Before the Initial Meeting
§ 10.3 Interviewing Strategies
§ 10.4 Child Protective Services (CPS)
§ 10.5 Unaccompanied Refugee Minors Program (URM)
§ 10.6 Guardianship/Conservatorship
§ 10.7 Shelter/Foster Families
§ 10.8 Reunification with Immediate or Extended Family Members
§ 10.9 School/Activities/Mobility
§ 10.10 Limited Knowledge of Trafficking Arrangements
§ 10.11 Trust and Vulnerability
§ 10.12 Removal Proceedings
§ 10.13 T Visas, U Visas or Special Immigrant Juvenile Status
§ 10.14 Cooperation Requirements Vary Based on Age
§ 10.15 Force, Fraud or Coercion Not Required for Commercial Sex Work if under 18 Years Old
§ 10.16 Family Derivative Petitions
§ 10.17 Trauma and Testimony
Chapter 11: Repatriation and Options for Immigration Relief
§ 11.1 Elements for Eligibility
§ 11.2 Standards of Proof
§ 11.3 Denials and Revocations of Visa Applications
§ 11.4 Cases in Removal Proceedings
§ 11.5 Cases with Orders of Removal
§ 11.6 Reunification/Repatriation to Home Country
§ 11.7 Safety Concerns in the Home Country
§ 11.8 Services Available in the Home Country
§ 11.9 Possibility of Return to the United States
§ 11.10 Providing Resources to Client and Connecting with NGOs in Home Country
§ 11.11 Remaining in the United States, but Not Pursuing Immigration Relief
§ 11.12 Choosing Whether to Seek Immigration Status
§ 11.13 Choosing Which Status to Pursue
§ 11.14 Preparation to File
§ 11.15 While an Application Is Pending
§ 11.16 Post Receipt of Relief
§ 11.17 Consular Processing for Derivatives
§ 11.18 Adjustment of Status
Chapter 12: Trauma and Secondary Trauma
§ 12.1 Experiencing Trauma
§ 12.2 Intrusive Phase and Symptoms
§ 12.3 Numbing or Avoidance Phase and Symptoms
§ 12.4 Memory and Testimony
§ 12.5 During the Interview
§ 12.6 Before and after Interviews
§ 12.7 Preparing for Law Enforcement Interviews
§ 12.8 Concepts of Secondary Trauma (Vicarious Trauma, Compassion, Fatigue, …)
§ 12.9 Symptoms of Secondary Trauma
§ 12.10 Assessing the Possibility of Re-Traumatization or Secondary Trauma
§ 12.11 Awareness of the Effects of Working with Trauma Survivors
§ 12.12 Issues Unique to Legal Representatives
§ 12.13 Issues Unique to Staff
§ 12.14 Issues Unique to Interpreters
§ 12.15 Self-Care: Why It’s Important
§ 12.16 Self-Care: Prevention of Secondary Trauma
Chapter 13: Legislative Advocacy
§ 13.1 Lessons Learned Regarding Crafting Anti-Trafficking Legislation
Appendix
Index of Appendices
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
Appendix H
Appendix I
Appendix J
Appendix K
Appendix L
Appendix M
Appendix N
Appendix O
Appendix P
Appendix Q
Appendix R
Appendix S
Appendix T
Appendix U
Appendix V
Appendix W
Appendix X
Appendix Y
Appendix Z
Appendix AA
Appendix BB
Appendix CC
Appendix DD
Appendix EE
Appendix FF
Appendix GG
Appendix HH
Appendix II
Appendix JJ
Appendix KK
Appendix LL
Appendix MM
Appendix NN
Appendix OO
Appendix PP
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ILRC.RepresSurvivHumTraf.2nd2014.cover:Layout 2 4/8/14 7:33 AM Page 1

The objective of this handbook is to provide a roadmap based on real cases, including the mistakes and lessons learned and promising practices, that will hopefully save other advocates time and energy as you continue to

build more effective capacity for assisting trafficked persons. The roadmap includes an overview of the basics, as well as fundamentals of trafficking cases for a team-based model to serve survivors of trafficking. Included are tips for identifying a potential victim of human trafficking, addressing the most common questions about a trafficking situation, how to deal with the practical challenges of a trafficking case, employing the diverse options for relief that you may be available to your client, and, importantly, supporting both the survivors and the service providers of a trafficking case. In this second edition, the authors also include advanced topics for practitioners, such as more in-depth practice pointers regarding civil litigation, updates on effectively wielding the visa relief available to survivors, and lessons learned in collaborative work in the years since the first addition. The authors have been working and writing on behalf of trafficking survivors for more than 10 years. Their extensive experience makes this handbook particularly thoughtful, relevant, and comprehensive. The Immigrant Legal Resource Center is pleased to publish this important handbook, expanding the resources available to address legal options for human trafficking survivors.

Representing Survivors of Human Trafficking

Representing Survivors of Human Trafficking: A Promising Practices Handbook. This handbook contains lessons learned and promising practice tips in the context of a team-based approach to serving human trafficking survivors. It is based on years of experience representing survivors of human trafficking acquired by the authors, national experts Lynette M. Parker, Cindy Liou, and Ivy Lee. These lessons and tips focus on the experiences of the San Francisco Bay region, but may have applicability to other regions of the United States. The objective of this handbook is to assist advocates for survivors of human trafficking, attorneys and nonattorneys, who are critical to the successful stabilization of those who have been victimized by human trafficking. Written primarily for immigration legal service providers and the private bar, the comprehensive analysis of how to approach a trafficking case will also be valuable to case managers, health care providers, and law enforcement agencies as well.

Representing Survivors of Human Trafficking A Promising Practices Handbook

TEACHING, INTERPRETING AND CHANGING LAW SINCE I 979

a publication of the

IMMIGR ANT LEGAL RESOURCE CENTER

SAN FRANCISCO, CA 94103 T 415.255.9499 / F 415.255.9792 WWW.ILRC.ORG

2nd Edition

1663 MISSION STREET SUITE 602

2nd Edition By Ivy C. Lee, Lynette M. Parker & Cindy C. Liou

Representing Survivors of Human Trafficking A Promising Practices Handbook 2nd Edition By Ivy C. Lee, Lynette M. Parker & Cindy C. Liou

The Immigrant Legal Resource Center

A=

Copyright 2014 Immigrant Legal Resource Center 1663 Mission Street, Suite 602 San Francisco, CA 94103 415.255.9499 www.ilrc.org

 

The Immigrant Legal Resource Center The Immigrant Legal Resource Center (ILRC) is a national, non-profit resource center that provides legal trainings, educational materials, and advocacy to advance immigrant rights. Since 1979, the mission of the ILRC is to work with and educate immigrants, community organizations, and the legal sector to continue to build a democratic society that values diversity and the rights of all people. What We Do: •

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Legal Professionals & Advocates: o

Trainings: Throughout the year, the ILRC staff attorneys provide classroom seminars and webinars on a wide range of topics that affect the immigrant community.

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Monitoring Changes in Immigration Law: ILRC attorneys are experts in the field of immigration law, and keep abreast of the frequent changes in immigration case law and policy so that we can inform our constituents of those changes as soon as they occur.

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Acknowledgements Human trafficking is real and it is happening everyday in our country. Right now, a victim may be riding on the bus next to you, or walking a child to school, or rising at dawn to labor in a factory or hotel or field, or waking, trapped inside a home in your neighborhood. Survivors of human trafficking should be lauded for their courage and determination to rise above the circumstances of their victimization. But, although it can be tempting to view survivors in a single-dimensional way as a tragic “victim,” the bottom line is that trafficked persons are only human, with all of our flaws, vulnerabilities, strengths, and quirks. Conducting advocacy on their behalf can be one of the most rewarding and fulfilling acts that you do in your life. It can also be immensely frustrating, exhausting, and thankless. Our objective with this resource is to, hopefully, lighten some of those most frustrating or exhausting or thankless moments for the amazing advocates and front-line counter-trafficking warriors that battle for survivors every single day. We are only too aware that a promising practice today can be an ineffective strategy tomorrow and that every single case is so different that many of our suggestions may not work. But we hope that this handbook serves as an idea book for readers and that you will “update” this handbook by giving us feedback on the content of this handbook and share with us the wisdom and practical tools that you have, and continue, to create. This handbook was a labor of love for us, written late at night and over weekends and revised ad nauseum, without any concept of reward other than sharing our hard-learned lessons with our colleagues. We dedicate this handbook to all of the individuals that give so much of themselves to help others: case managers, shelter staff, attorneys, language advocates, social service providers, medical personnel, law enforcement officers, prosecutors, political representatives, non-law enforcement government workers, volunteers, development staff who pursue and obtain the funding that allows this work to be done, and the funders who realize and act on the importance of serving trafficking survivors. Most importantly, this handbook is dedicated to our clients. Many warm thanks go to the wonderful people of the Immigrant Legal Resource Center, especially Sally Kinoshita, Barbara Pinto, Shari Kurita and Timothy Sheehan, who supported our idea for this handbook from the very beginning and patiently moved us forward until we were finally done. We would also like to send our appreciation to our former and current colleagues at the Asian Pacific Islander Legal Outreach and the Katharine & George Alexander Community Law Center, Santa Clara University Law School, who should be celebrated for their commitment and championship of the most underserved and vulnerable populations year after year. Last, but never least, we thank our families. Ivy C. Lee Attorney At Law Lynette M. Parker Associate Clinical Professor of Law, Katharine & George Alexander Community Law Center, Santa Clara University School of Law Cindy Liou Attorney at Law, Asian Pacific Islander Legal Outreach

Author Biographies Ivy C. Lee Attorney At Law Legislative Aide to San Francisco Supervisor Jane Kim Formerly of Asian Pacific Islander Legal Outreach and the Asian Anti-Trafficking Collaborative Ivy Lee, Esq., currently serves as a legislative and policy aide to San Francisco Supervisor Jane Kim on issues regarding civil and immigrant rights, public safety and criminal justice, and homelessness. Previously, Ivy acted as a private consultant on human trafficking and the rights of crime victims to both governmental and non-governmental organizations. From 2002 to 2009, she was the director of the Immigrant Rights & Human Trafficking Project at API Legal Outreach in San Francisco and her practice focused on representation of immigrant victims of crime, including human trafficking, for immigration and civil legal relief; legislative and policy advocacy at the local, state, and federal levels; and technical assistance and training for non-governmental organizations and law enforcement agencies. She is published in the Journal of International Law and Policy at UC Davis School of Law, “Human Trafficking from a Legal Advocate’s Perspective: History, Legal Framework & Current Anti-trafficking Efforts,” Volume 10, No. 1, Fall 2003, and in the Georgetown Journal on Poverty Law & Policy, “An Appeal of a T Visa Denial,” Volume XIV, No. 3, Fall 2007. In 2006, she was a senatorial appointee to the statewide task force, the California Alliance to Combat Trafficking and Slavery (CA ACTS) and served as the NGO chair of the North Bay Anti-Human Trafficking Task Force from 2006 to 2009. Ivy received her J.D. from New York University School of Law in 1998. Lynette M. Parker Associate Clinical Professor of Law Katharine & George Alexander Community Law Center, Santa Clara University Law School Member, South Bay Coalition to End Human Trafficking Lynette M. Parker is an Associate Clinical Professor of Law (Immigration Practice Area) at the Katharine and George Alexander Community Law Center. The Law Center is a civil clinical program of Santa Clara University School of Law. She has been teaching and supervising law students handling immigration cases at the Law Center since March 2000, and in particular T visa cases for human trafficking victims since 2003. In addition to her work at the Law Center, Ms. Parker is a lecturer in law at Santa Clara University School of Law. She created and taught a seminar on immigration legal benefits and representing human trafficking victims. She provides technical support to attorneys on political asylum, VAWA, U visa and T visa cases. She has authored a law review article published by Georgetown Immigration Law Journal titled “Increasing Law Students Effectiveness When Representing Traumatized Clients: A Case Study of the Katharine & George Alexander Community Law Center.” Ms. Parker is a member of the of the South Bay Coalition to End Human Trafficking and a member of the Bay Area Coalition for Immigrant Victims of Crimes.



Cindy C. Liou Staff Attorney & Director of Human Trafficking Project Asian Pacific Islander Legal Outreach Cindy C. Liou is a staff attorney and the Director of the Human Trafficking Project at Asian Pacific Islander Legal Outreach. Cindy currently practices law in the areas of human trafficking, immigration law, family law, and domestic violence. She is the Director for the Human Trafficking Project at the agency. Cindy has also co-counseled several civil litigation cases on behalf of human trafficking survivors. She is the recipient of the 2013 San Francisco Collaborative Against Human Trafficking Modern Day Abolitionist Award for Policy and Advocacy. The San Francisco Commission on the Status of Women also passed a resolution in 2013 to honor her anti-trafficking efforts. Cindy is also the co-author of several articles. Before working at API Legal Outreach, Cindy handled a variety of pro bono cases at Wilson Sonsini Goodrich & Rosati, ranging from asylum to police misconduct cases. Cindy graduated from Stanford Law School where she was enrolled in the Immigrants' Rights Clinic and Community Law Clinic in Ghana. Before becoming an attorney, she consulted for the Corporate Social Responsibility Department of Starbucks Coffee Company.



Representing Survivors of Human Trafficking December 2013

Representing Survivors of Human Trafficking 2nd Edition Table of Contents Chapter 1

Introduction

Chapter 2

Team-Based Perspective on Addressing Human Trafficking Survivors

§ 2.1 § 2.2 § 2.3

Introduction ........................................................................................................ 2-1 San Francisco Model .......................................................................................... 2-3 San Jose Model................................................................................................... 2-7

Chapter 3

Trafficking Basics

§ 3.1 § 3.2 § 3.3 § 3.4 § 3.5 § 3.6 § 3.7

Identifying Potential Victims of Human Trafficking ......................................... 3-1 Who Is Trafficked to and within the United States? .......................................... 3-1 Who Are the Traffickers? ................................................................................... 3-3 How Does Recruitment Happen? ....................................................................... 3-5 What Kinds of “Industries” Are Involved in Human Trafficking? .................... 3-8 What Kind of Obstacles Do Victims Face When Seeking Help?....................... 3-9 Understanding Intersections between Labor Exploitation, Smuggling, and Human Trafficking .................................................................................... 3-10

Chapter 4

The Stages of a Human Trafficking Case and the Needs of the Survivor

§ 4.1 § 4.2 § 4.3 § 4.4 § 4.5

Overview ............................................................................................................ 4-1 Emergency Stage ................................................................................................ 4-3 Non-Emergent Crisis Stage ................................................................................ 4-6 Stabilization ........................................................................................................ 4-7 Integration .......................................................................................................... 4-9

Chapter 5

Parallel Legal and Non-Legal Proceedings and Their Impact on Your Case

§ 5.1 § 5.2 § 5.3 § 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10

Immigration Track.............................................................................................. 5-1 Criminal Track: Overview.................................................................................. 5-5 Criminal Track: Protecting Crime Victims ........................................................ 5-8 Criminal Track: Sentencing and Victim Impact Statements ............................ 5-16 Civil Track: Overview ...................................................................................... 5-17 Defense against Discovery ............................................................................... 5-25 Restitution ........................................................................................................ 5-32 Settlement Agreements..................................................................................... 5-37 Structuring Damages with Public Benefits and Taxes ..................................... 5-41 Non-Legal Survivor Services ........................................................................... 5-44

Table of Contents-1

Immigrant Legal Resource Center December 2013

Chapter 6

Identifying and Developing the Team Members, Collaborators and Resources

§ 6.1 § 6.2

Law Enforcement Agencies (Federal and Local) ............................................... 6-1 Housing: Emergency Shelter, Short-Term, Transitional and Long-Term Options ................................................................................... 6-10 Social Service Providers and Case Management ............................................. 6-12 Health Services: Mental, Physical, Reproductive, and Dental Health ............. 6-12 Legal: Criminal, Civil, Immigration, and Employment Rights ........................ 6-14 New Partners/Changing Personnel in Coalitions and Task Forces .................. 6-15 Government Entities ......................................................................................... 6-16 Collaboration with International Office of Migration (IOM) ........................... 6-19 Working with Consular Offices and Embassies ............................................... 6-20 Language and Culture ...................................................................................... 6-20 Funds for Necessities........................................................................................ 6-23 Continuing Communication and Development of Working Relationship .................................................................................. 6-24

§ 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12

Chapter 7

Practical Challenges in a Trafficking Case

§ 7.1 § 7.2 § 7.3 § 7.4 § 7.5 § 7.6 § 7.7 § 7.8 § 7.9 § 7.10 § 7.11 § 7.12 § 7.13 § 7.14

Establishing Baseline Protocols for the Team .................................................... 7-1 Law Enforcement: Role, Goal, and Limits ......................................................... 7-4 Request for the Client’s Declaration .................................................................. 7-6 Interviews with Law Enforcement ..................................................................... 7-8 Housing ............................................................................................................ 7-11 Case Management ............................................................................................ 7-13 Health Services ................................................................................................. 7-14 Legal ................................................................................................................. 7-15 Government Agencies ...................................................................................... 7-17 Language and Culture ...................................................................................... 7-18 Funders ............................................................................................................. 7-19 Conflicts of Interest .......................................................................................... 7-20 Information Keeping and Sharing .................................................................... 7-31 Safety Concerns (Client/Agency Personnel) .................................................... 7-38

Chapter 8

Protocols Regarding Discovery of a Human Trafficking Survivor

§ 8.1 § 8.2 § 8.3 § 8.4

Designating a Point Person................................................................................. 8-2 Notification of Impending Law Enforcement Action ........................................ 8-5 Phone Tree to Activate Service Providers .......................................................... 8-7 Coordinating Logistics of Intakes, First Contact with Potential Survivors, Assignments ...................................................................................... 8-8 Presence of Advocate(s) ..................................................................................... 8-9 On-Site Intakes ................................................................................................. 8-11 Assessment ....................................................................................................... 8-13

§ 8.5 § 8.6 § 8.7

Table of Contents-2

Representing Survivors of Human Trafficking December 2013

§ 8.8 § 8.9 § 8.10 § 8.11 § 8.12 § 8.13 § 8.14 § 8.15 § 8.16 § 8.17

Protecting Shelter Anonymity .......................................................................... 8-14 Relocation of Survivor(s) ................................................................................. 8-16 Separation from Traffickers ............................................................................. 8-17 Debriefing as a Team ....................................................................................... 8-18 Scenarios in Which This Occurs ...................................................................... 8-19 Activation of Service Providers ....................................................................... 8-20 Report to Law Enforcement ............................................................................. 8-21 Mobilizing Your Team ..................................................................................... 8-23 Identifying Emergency Needs (Safety, Health, Family Safety, Shelter) ............................................................................................................. 8-24 Good Samaritans .............................................................................................. 8-24

Chapter 9

Agency Preparation for Human Trafficking Cases

§ 9.1 § 9.2 § 9.3

Scope of Representation or Services .................................................................. 9-1 Practical Tools .................................................................................................... 9-3 Media Policy and/or Protocol ............................................................................. 9-6

Chapter 10

Special Considerations Representing Minors, Survivors in Criminal, Detention, and Removal Proceedings, and Witnesses

§ 10.1 § 10.2 § 10.3 § 10.4 § 10.5 § 10.6 § 10.7 § 10.8 § 10.9 § 10.10 § 10.11 § 10.12 § 10.13 § 10.14 § 10.15 § 10.16 § 10.17

Interviewing and Communicating with Minors ............................................... 10-2 Before the Initial Meeting ................................................................................ 10-2 Interviewing Strategies ..................................................................................... 10-3 Child Protective Services (CPS)....................................................................... 10-4 Unaccompanied Refugee Minors Program (URM) .......................................... 10-5 Guardianship/Conservatorship ......................................................................... 10-6 Shelter/Foster Families ..................................................................................... 10-6 Reunification with Immediate or Extended Family Members ......................... 10-7 School/Activities/Mobility ............................................................................... 10-7 Limited Knowledge of Trafficking Arrangements ........................................... 10-8 Trust and Vulnerability .................................................................................... 10-9 Removal Proceedings ..................................................................................... 10-10 T Visas, U Visas or Special Immigrant Juvenile Status ................................. 10-10 Cooperation Requirements Vary Based on Age ............................................. 10-11 Force, Fraud or Coercion Not Required for Commercial Sex Work if under 18 Years Old .................................................................... 10-12 Family Derivative Petitions ............................................................................ 10-12 Trauma and Testimony ................................................................................... 10-13

Chapter 11

Repatriation and Options for Immigration Relief

§ 11.1 § 11.2 § 11.3

Elements for Eligibility .................................................................................... 11-2 Standards of Proof ............................................................................................ 11-3 Denials and Revocations of Visa Applications ................................................ 11-4

Table of Contents-3

Immigrant Legal Resource Center December 2013

§ 11.4 § 11.5 § 11.6 § 11.7 § 11.8 § 11.9 § 11.10

§ 11.12 § 11.13 § 11.14 § 11.15 § 11.16 § 11.17 § 11.18

Cases in Removal Proceedings......................................................................... 11-6 Cases with Orders of Removal ......................................................................... 11-7 Reunification/Repatriation to Home Country .................................................. 11-8 Safety Concerns in the Home Country ............................................................. 11-9 Services Available in the Home Country ......................................................... 11-9 Possibility of Return to the United States ...................................................... 11-10 Providing Resources to Client and Connecting with NGOs in Home Country ............................................................................................ 11-10 Remaining in the United States, but Not Pursuing Immigration Relief ......................................................................................... 11-11 Choosing Whether to Seek Immigration Status ............................................. 11-13 Choosing Which Status to Pursue .................................................................. 11-14 Preparation to File .......................................................................................... 11-21 While an Application Is Pending.................................................................... 11-22 Post Receipt of Relief ..................................................................................... 11-23 Consular Processing for Derivatives .............................................................. 11-23 Adjustment of Status ...................................................................................... 11-25

Chapter 12

Trauma and Secondary Trauma

§ 12.1 § 12.2 § 12.3 § 12.4 § 12.5 § 12.6 § 12.7 § 12.8

§ 12.11 § 12.12 § 12.13 § 12.14 § 12.15 § 12.16

Experiencing Trauma ....................................................................................... 12-1 Intrusive Phase and Symptoms......................................................................... 12-2 Numbing or Avoidance Phase and Symptoms ................................................. 12-3 Memory and Testimony ................................................................................... 12-4 During the Interview ........................................................................................ 12-5 Before and after Interviews .............................................................................. 12-6 Preparing for Law Enforcement Interviews ..................................................... 12-7 Concepts of Secondary Trauma (Vicarious Trauma, Compassion, Fatigue, …)....................................................................................................... 12-8 Symptoms of Secondary Trauma ..................................................................... 12-8 Assessing the Possibility of Re-Traumatization or Secondary Trauma ............................................................................................................. 12-9 Awareness of the Effects of Working with Trauma Survivors ........................ 12-9 Issues Unique to Legal Representatives ......................................................... 12-10 Issues Unique to Staff..................................................................................... 12-11 Issues Unique to Interpreters .......................................................................... 12-11 Self-Care: Why It’s Important ........................................................................ 12-12 Self-Care: Prevention of Secondary Trauma .................................................. 12-13

Chapter 13

Legislative Advocacy

§ 13.1

Lessons Learned Regarding Crafting Anti-Trafficking Legislation................. 13-1

§ 11.11

§ 12.9 § 12.10

Table of Contents-4

Representing Survivors of Human Trafficking December 2013

Index of Appendices Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I Appendix J Appendix K Appendix L Appendix M Appendix N Appendix O Appendix P Appendix Q Appendix R Appendix S Appendix T Appendix U Appendix V Appendix W Appendix X Appendix Y Appendix Z Appendix AA Appendix BB Appendix CC Appendix DD Appendix EE Appendix FF Appendix GG Appendix HH Appendix II Appendix JJ Appendix KK

Appendix LL Appendix MM

North Bay Task Force Referral Protocol/Phone Tree South Bay Coalition to End Human Trafficking Protocol Crisis Contact Form: Needs Assessment Parallel Processes Chart Protocol for Survivor Number Assignment Initial Letter to Law Enforcement Sample Preliminary Intake Form A Sample Legal Intake Form Sample Immigration Intake Form Sample Trafficking Questionnaire Sample Attorney-Client Agreement A Sample Attorney-Client Agreement B Sample Joint Representation Disclosure and Consent Form Sample Release of Information Form Sample Media Protocol Sample T Visa Application: Cover Letter A Sample T Visa Application: Cover Letter B Sample T Visa Application: Declaration A Sample T Visa Application: Declaration B Sample T Visa Application: Form I-914 Sample Response to Request for Evidence A Sample Response to Request for Evidence B Sample Notice of Appeal Sample Request for Supervisor Review Sample Motion to Reopen and Reconsider Sample Motion for Administrative Closure of Removal Proceedings Sample Motion to Terminate Removal Proceedings Sample Motion to Recalendar and Terminate Removal Proceedings Sample Letter for CalWorks Sample Letter to Social Services Resources for Various Forms of Immigration Legal Relief Memorandum on Revised EEOC U visa Procedures U.S. Department of Labor U visa Process and Protocols Questions and Answer Sample Civil Complaints for Trafficking Survivors Sample Verdict for Civil Trafficking Case IRS Notice 2012-12 Sample Instructions for Fingerprinting of Family Members at the United States Embassy (English) and Ejemplo Instrucciones Para Obtener Las Huellas Digitales (Spanish) July 21, 2010 USCIS Policy Memorandum on Changes to T and U Nonimmigrant Status and Adjustment of Status Provisions Sample Redacted Motion to Quash

Table of Contents-5

Immigrant Legal Resource Center December 2013

Appendix NN Appendix OO Appendix PP

Federal Register Regarding T-6 visas Sample Interpreter Confidentiality Agreement Sample Common-Interest Agreement

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CHAPTER 1 INTRODUCTION

This handbook contains lessons learned and promising practices acquired by the authors over years of representing survivors of human trafficking through a team-based approach. These lessons and tips focus on the experiences that the authors and other practitioners have had primarily in California, but which are largely applicable to other regions of the United States. The objective of this handbook is to assist legal and non-legal advocates of survivors of human trafficking, who are critical to the successful stabilization of trafficked persons. Human trafficking survivors are a unique client population with diverse and resourceintensive needs. As we will detail in this handbook, their situations are multidimensional, involving legal and non-legal issues, such as immigration, criminal, and civil law; mental and physical health; reunification with family members, and much more—all resulting in what can seem to be a jungle of potential pitfalls and challenges with no discernible path for the advocate to follow. While legal resources exist that specifically detail the application process and procedures for the various forms of immigration relief available to trafficked persons, there is an equally important need for other resources that delve deeply into other aspects of a trafficking case. These include topics such as how to identify and build collaborative partnerships with service providers, law enforcement agencies, and other entities that play a significant role in trafficking situations; the stages of recovery that a survivor experiences and the attendant needs that arise during each stage; and the red flags of secondary trauma to watch for and avoid before they derail you and/or your trafficking team. Laws and policies governing human trafficking cases have developed since the first federal anti-trafficking law was passed in 2000. In response we have also included detailed information about issues that may be new or unfamiliar to most advocates, such as restitution, defense against subpoenas, and enforcement of victims’ rights. Our goal is to provide concrete examples of these issues and give recommendations on how to deal with them effectively. Although we will provide an overview of the most common forms of immigration relief used in trafficking cases—the T and U visa—since these forms of relief figure so prominently in most trafficking cases, this is not a T visa or a U visa manual.1 T visas are intended for survivors

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There are several excellent resources that are currently available for readers who want detailed information about immigration relief for trafficked persons, such as The VAWA Manual written by Evangeline Abriel and Sally Kinoshita and published by ILRC and can be purchased at www.ilrc.org; the T Visa Manual written by Evangeline Abriel and published by Catholic Legal Immigration Network, Inc. (CLINIC); Identification and Legal Advocacy for Trafficking Survivors authored by the NY AntiTrafficking Network Legal Subcommittee; and others. See the List of Legal Immigration Resources located in Appendix EE.

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Immigrant Legal Resource Center December 2013

of “severe forms of human trafficking.” U visas are intended for survivors of “certain statutorilylisted crimes in the United States,” including but not limited to the commonly trafficking-related enumerated crimes of slavery, trafficking, involuntary servitude, peonage, and fraud in foreign labor contracting. Both types of visas are granted for four years and can include employment authorization. Both visas incorporate an option to apply to adjust to permanent resident status upon the third anniversary of the visa, and both visas have provisions for certain derivative family members. The authors’ objective is to continue to build on the practical lessons included in the first handbook, highlighting new strategies and additional legal options that have arisen since 2010. This updated edition is focused on advocacy and practices that have been tested through actual casework. Our continued hope and goal is to create a tool that can save time and increase the effectiveness of other advocates in this field. This edition includes an overview of the fundamentals of trafficking cases including identifying a potential victim of human trafficking and addressing the most common questions about a trafficking situation:   

What are the stages of a trafficking case? What needs might a survivor have at each stage? What other legal and non-legal proceedings might be happening at the same time as your representation of the survivor? How might those other proceedings impact your case? With the possible concurrent needs of the survivor and concurrent proceedings in a trafficking case, whom do you need on your team and what resources do you need to do your job?

We also address continuing practical challenges in the anti-trafficking field:      

With so many players involved in a single case, what kind of baseline “rules” do you need for the team to function effectively in the best interests of the survivor? How do you prepare for the discovery relating to a trafficked person’s case and the most effective and efficient ways of meeting the survivor’s needs amongst the team? How do you prepare your own agency to take on a case involving human trafficking? What kind of internal “rules” might you need and what range of resources should be prepared? How do you deal with the media attention of a high-profile trafficking case? What are some special considerations to keep in mind when dealing with trafficked minors or trafficking survivors who are in detention? How do you deal with reunification issues in source countries? What kinds of conflicts of interest do you need to be prepared to address when family members of trafficked persons are reunited in the U.S.?

In Chapters 5 and 11, we specifically address the diverse options for relief that you may have to present to your client. This may include immigration relief, civil relief, criminal relief, subpoena defense, restitution, and non-legal assistance.

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In Chapter 12 we discuss an area that is seldom given enough attention—the trauma of a trafficking case—not just on the victim, but on the service providers who are involved. While we want to ensure that this topic is flagged in this handbook, we do not claim to be experts in how to prevent or treat psychological or emotional trauma. Instead, we describe the dynamics of vicarious or secondary trauma that we have observed and experienced, so that anti-trafficking advocates, who give so much of themselves in so many ways, will pay attention to the impact of these cases on themselves and their loved ones and will take some time for self-care. In Chapter 13, we share our experiences in the legislative and policy arena, with recommendations on how to maximize effective advocacy in the legislative and policy world. We have also included samples of many of the documents, protocols, and other practical tools that we discuss in this handbook for readers to use and shape in whatever way is most helpful to them. This handbook is designed with the idea that advocating and representing survivors of human trafficking is a work in progress. We hope that the stories and practices that we showcase will serve as an “idea book” for other advocates to be improved upon and developed for the benefit of the whole community and, in particular, the survivors that we serve.

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CHAPTER 2 TEAM-BASED PERSPECTIVE ON ADDRESSING HUMAN TRAFFICKING SURVIVORS

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This chapter includes: Introduction ........................................................................................................ 2-1 San Francisco Model .......................................................................................... 2-3 San Jose Model................................................................................................... 2-7

§ 2.1 Introduction Unlike most areas of immigration law practice, representing human trafficking survivors requires a coordinated response among law enforcement, case managers, health care providers, and different types of legal representatives. It is extremely difficult to effectively serve human trafficking survivors in a vacuum. This perspective of a team-based perspective to serving human trafficking survivors is explored further in Chapter 6, but the below examples may help explain why developing a strong team is so vital to this area of immigration practice. Example: Law enforcement has been investigating several brothels in the area. Early in the morning on a holiday weekend, officers raid the brothels and remove dozens of workers. The workers are taken to a holding facility with only the clothes they are wearing. They do not speak English. They have been told repeatedly by their traffickers to distrust anyone other than the traffickers, and are afraid that they will be jailed or deported. Many of the workers have been sexually abused. Others have gone for years without medical care and dental care, and have untreated dental or medical issues. Some workers were repeatedly raped to break them into the business, while others were cut or burned for being “rebellious.” The workers are afraid to talk to anyone, or indicate that they are fine and have not been forced to work. They are scared and need immediate medical, mental health and dental attention. The workers are being held in a large dorm facility with some of the workers who were used by the traffickers to watch and control the other workers. As the workers are being taken to be questioned by law enforcement, these controllers are warning the other workers not to speak. They are reminding them that the traffickers will send their own attorneys to free the workers so they can go back to work for the traffickers. Law enforcement has contacted the case managers and attorneys. The workers do not know who each party is, or what their roles are. The interpreters are from the community and have their own biases about the work the women were engaged in. The workers are disoriented, scared, and do not know whom to trust.

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§ 2.1 § 2.2 § 2.3

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In the example above, the potential for chaos is enormous. If a cohesive, coordinated team has been set in place prior to this type of law enforcement action, the response can avoid chaos, ensure that survivors’ needs are met quickly and appropriately, and protect their legal rights. Example: A woman seeks assistance from a community-based agency because she fears for the safety of her children in her home country. The woman is distraught. In speaking to her about her situation and how she arrived in the country, the legal representative suspects human trafficking. The legal representative assists the woman to report her trafficking to law enforcement, and accompanies the woman in the interviews that she has with law enforcement. The legal representative discovers the extent of prolonged torture the woman suffered at the hands of her trafficker, and arranges for a case manager to assist the woman to seek mental health counseling and medical attention. Simultaneously, the legal representative begins preparing an application for a T visa, along with derivative T visas for the woman’s children. Since a T visa requires cooperation with reasonable requests from law enforcement in the investigation and/or prosecution of the traffickers, the legal representative facilitates communication between her client and law enforcement, while working to ensure that her client can bring her children to the United States as soon as possible. Concerns for her children’s safety were the underlying issues that initiated this process. Through a team-based approach, the survivor of human trafficking in this example is able to receive services and meet the requirements of the law through a seamless process because the different agencies are familiar with each other and have established protocols and procedures that make the process less stressful and more efficient for the survivors. A team-based approach to addressing the needs of human trafficking survivors presents its own challenges; as well as rewards. Even for immigration practitioners accustomed to approaching law enforcement for certifications required for U visas, the close working relationship between law enforcement and legal representatives in the context of human trafficking is unique and for many agencies unfamiliar. Law enforcement usually deals with legal representatives after an investigation has been completed. However, in the context of human trafficking, it is vital that legal representatives be present as close to the time of the enforcement action as possible. Legal representatives can assist in screening and identifying survivors, as well as provide an alternative to the inevitable arrival of the attorneys hired by traffickers to represent the workers. Alternatively, legal advocates can benefit from working closely with law enforcement, assisting law enforcement to distinguish between traffickers and workers who may have been used by traffickers to control other workers, but who are themselves survivors. Legal advocates, who work closely with law enforcement, may be able to have prior warning of a law enforcement action and be able to participate at the outset in the screening of potential survivors. Thus, it benefits all parties to work closely together. The same principle can be applied to the other members of the team—the case managers, the health care providers, and the interpreters. Many models have been developed throughout the country for working within this teambased approach. Each model has been designed in the context of the needs and programs existing

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In Northern California, there are currently two major coalitions that serve trafficked persons: one located in the San Jose and South Bay region and one located in the San Francisco and East Bay region. These two coalitions have served the majority of trafficked persons either discovered in or relocated to Northern California since 2001. Two significant characteristics of both coalitions are: 1) the team-based service model and 2) a consistent and continuous working collaboration between law enforcement agencies and community-based or nonprofit organizations.

§ 2.2 San Francisco Model In the San Francisco and East Bay region (“SF Bay Area”), it is important to understand the difference between the informal network that has been established over time and the official “task force” that was created in 2003 with federal funding. These two entities are not the same body. The informal network came about organically, resulting from casework that spread over multiple agencies, and included law enforcement participation because of the criminal investigation aspect of the cases. The members of this network began organizing themselves as the Bay Area Anti-Trafficking Task Force in 2000 because of the realization that the individual member organizations had been separately working with persons who had been victims of human trafficking, but who had not been defined or recognized as such. No established network of services existed for victims of human trafficking and each case was being handled on an ad hoc basis. Each agency had been attempting to cobble together services and expertise and there was a common realization that there was a need to strategize about this major gap in services for future clients. Therefore, the members of this informal network were primarily community-based organizations that served domestic violence survivors, immigrants, and children that were based all over the Bay Area, from Santa Clara County to Marin County and the East Bay.1 There was no main entity in charge of the network and the network functioned in a very consensus-oriented way. Most of the member agencies had worked together previously on issues such as immigrant

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Asian Women’s Shelter, Asian Pacific Islander Legal Outreach, Cameron House, Narika, Lawyers Committee for Civil Rights of the San Francisco Bay Area, and Next Door Solutions to Domestic Violence were just some of the original members of this network.

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in that particular region. The authors of this handbook recognize that many agencies serving human trafficking survivors have done heroic work with limited resources and without the support of a team. Geographic distance and limited resources may inhibit the building of a team and developing a cohesive and competent team requires dedicated time. Constant turnover requires building relationships beyond individuals to create institutional frameworks of trust and protocols. Sustaining and growing such a team demands a constant investment of time and energy, as well as indirect financial investments. While a model may work for one region, it may not necessarily function in another region. Two models will be discussed below with hopes that these models serve as examples not only of potential designs, but also to further explain the scope of serving human trafficking survivors.

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rights, welfare reform, and domestic violence and several were already in a funding collaborative to serve immigrant survivors of domestic violence. The mission of the task force was ambitious: 1) to ensure that trafficked persons are treated as survivors of criminal activity (not criminals) and have full access to justice and to linguistically and culturally appropriate services, including victim-centered social, mental health, medical, legal, education and vocational assistance; 2) to engage in advocacy at the local, regional and national levels on behalf of trafficked persons, with the goal of pursuing full prosecution of all traffickers and full protection/services for trafficked persons; 3) to act as a clearinghouse for research on trafficking to the greater Bay Area; and 4) to increase public awareness about the crime of trafficking through community outreach and organizing, education and training. However, the ability of the task force to achieve this multi-pronged mission was severely limited by two major factors: 1) the actual composition of the task force membership and 2) the growing political divide in the anti-trafficking movement. There were two main categories of members with very different interests: non-service providing agencies and individuals interested in the issue of human trafficking generally and service-providing agencies interested in establishing a working task force for service providers to share promising practices and to create and conduct joint outreach and education about trafficking. The non-service providers’ focus was for the task force to function as a tool to conduct research and collect data on victims, which was anathema to the service providers who felt that they could not share confidential client information at this point. The growing political divide arose from the conflation of prostitution with human trafficking that several of the members actively promoted in disagreement with the majority of the task force members. The majority wished to ensure that the concept of human trafficking centered on the forced labor aspect, regardless of what industry or type of enslavement was involved. The area of sex trafficking was highly sensationalized by the media and the majority of the task force wanted to ensure that sex trafficking was not the sole form of human trafficking that would be recognized, resulting in the lack of recognition and aid provided to non-sex trafficking victims. The task force did share a common desire to raise the general public’s level of awareness and understanding about the issue of human trafficking. Therefore, the task force was able to develop and conduct a one-day regional conference about human trafficking in 2003 that included members of the state legislature, federal and local law enforcement, service providers from instate as well as out-of-state, and faith-based organizations from Southern and Northern California. After this conference, the task force became an inactive body as a result of the challenges detailed above. Two different task forces came into existence in its place. The first was a working task force and funded collaborative called the Asian AntiTrafficking Collaborative (“AATC”). AATC was composed of Asian Women’s Shelter, Cameron House, Narika, and Asian Pacific Islander Legal Outreach (formerly known as Nihonmachi Legal Outreach). In 2003, AATC received federal grants from both the Office of

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The second task force was the “official” federally-funded joint task force originally named the San Francisco Bay Area Trafficking Task Force (“SF Task Force”). Eventually this SF Task Force split into three different regional task forces: the North Bay Trafficking Task Force (“North Bay Task Force”), the South Bay Trafficking Task Force (“South Bay Task Force”) which is profiled below, and the East Bay Trafficking Task Force (“East Bay Task Force”). The SF Task Force was created in 2005 after the San Francisco Police Department successfully obtained a federal grant to establish a working task force on human trafficking. The grant’s terms included a mandate to include a broad-based range of groups, such as the U.S. Attorney’s Office, law enforcement agencies (federal, state, and local), community-based organizations, medical professionals, faith-based organizations, and non-law enforcement government organizations. The goal was to increase the capacity of all parties to fight trafficking successfully—from proper identification of victims, to providing victim services and shelter, to investigating and prosecuting the perpetrators—through cross-trainings, information-sharing, and effective bridge-building among the diverse members. The SF Task Force was convened by the USAO for the Northern District of California. Original members were solicited by the USAO and local police departments such as the SFPD and the solicitations seemed to be based upon the needs that a victim might have and which entities would be able to meet those needs. Therefore, many of the members of this official task force were not familiar with trafficking because of the lack of any actual experience dealing with any survivors. However, all the members were sufficiently invested to want to gain expertise in this area and to play a constructive role in whatever way that they could if and when a survivor was discovered.

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In June 2009, Cameron House became an inactive member of the AATC and continues to participate on trafficking-related matters with AATC on a case-by-case basis.

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Victims of Crimes (OVC) and the Office for Refugee Resettlement (ORR) to serve trafficked persons from discovery through stabilization with legal and non-legal services, to provide training to law enforcement, governmental and non-governmental organizations, and to conduct community education and outreach to help build public awareness as well as build more capacity for services to this growing client population. AATC continued to work very closely with several of the other members of the original Bay Area task force, such as the Lawyers Committee for Civil Rights of the San Francisco Bay Area and with Next Door Solutions for Domestic Violence, primarily because of the common philosophy of these groups that survivor services must be culturally and linguistically appropriate, that all practices should be designed to be victimcentered, and that all forms of human trafficking needed to be highlighted in order to try and ensure that no victim would be lost due to lack of proper identification. AATC continues to provide comprehensive services to survivors, regardless of national origin, ethnicity, or gender. It is the primary service provider point of contact for the United States Attorney’s Office (“USAO”) and San Francisco Police Department (“SFPD”) for trafficked-related matters and is the primary non-governmental organization (NGO) representative on the federal joint task force for the North Bay.2

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Currently, the North Bay Task Force is still convened by the USAO, with the assistance of the SFPD. Additionally, in the last two years, the USAO has organized and convened the North Bay Task Force meeting in conjunction with East Bay Task Force partners and jurisdiction and do not lead up separate East Bay Task Force meetings. Asian Pacific Islander Legal Outreach (“API Legal Outreach”) is one of the primary non-governmental organization representatives on the North Bay Task Force, the SFPD is the primary local law enforcement representative, and the USAO is the primary federal law enforcement representative. A formal protocol for cross-agency communication and referrals was created in the latter-half of 2005 and was updated in 2009. See Appendix A: North Bay Task Force Referral Protocol/Phone Tree.3 The North Bay Task Force typically holds quarterly meetings organized by the USAO that are open to any organizations that are interested in participating in the task force and meetings typically include some form of cross-training between government and nongovernmental sectors and focuses on relationship and network-building between participants. As of fall 2009, the North Bay Task Force is no longer federally funded, but it continues to meet on a quarterly basis to continue its collaboration and ongoing work. Funding the provision of services or task forces such as the ones discussed in this handbook, either by public or private dollars, is not a unique challenge. However, it is important to note that the will and commitment of the members of the North Bay Task Force to the area of human trafficking has resulted in the continuation of the task force even without a sustaining source of financial support. You may want to address this issue in your own coalition or network if you have not already done so: what is the range of commitment of its members and will the availability of funding impact this commitment? Of course, these may not be questions that have immediate or easy answers, but it is an issue to put on the table to allow you to be able to prepare for cases more effectively. For example, if the coalition knows that funding will not be renewed for a specific service provider who is part of the team, the other team members can then better strategize how they will address the needs of the survivors that were previously met by that agency. The North Bay Task Force’s strengths come not from any detailed policies and procedures but from the interpersonal relationships that have developed as a result of successful collaboration on actual cases. There are regular discussions about how formal the protocols and procedures should be, and in what ways those protocols can help but also hinder the work if they are too rigid. The main service providers and law enforcement points of contact are familiar with each other’s work style and ethics, are in regular communication about new developments in the area of human trafficking, and view each other as accessible and reliable resources with specific expertise in their areas. This does not mean that the interpersonal relationships have been wholly positive—there have been major disagreements and conflicts over the years. But ultimately there is a mutual respect that enables the North Bay Task Force to operate successfully with the common purpose of aiding the survivor even if the roles played are not the same. The positive interpersonal relationships result in good communication, understanding of each other’s capacity

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Note that Cindy Liou, Esq., is the point person for legal services at API Legal Outreach as of September 2010.

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and limits, and a less traumatic overall experience for the survivor as he or she navigates through all the steps that accompany a trafficking situation. But this strength is also a potential vulnerability if there is major staff turnover and the loss of these relationships. So far, staff has been fairly consistent across agencies and the existence of the written protocol has helped to ensure smooth transition when staff has changed and the crucial relationships have thereby been altered and need to be re-established. Regular quarterly meetings and sometimes meetings between the main services providers to introduce the players and points of contact remain crucial in order to deal with staff turnover issues.

As of October 2012, the Anti-Trafficking Collaborative of the Bay Area (ATCBA) which includes certain social services and legal services providers (Asian Pacific Islander Legal Outreach, Asian Women’s Shelter, Narika, The SAGE Project, and Mujeres Unidas y Activas) was awarded OVC funding to provide services for both domestic and international survivors of human trafficking. The agencies meet on a monthly basis and coordinate legal and social services together. When working with clients that move around or are further geographically relocated, the agencies reach out to partners in the Freedom Network and email lists coordinated by ASISTA. Occasionally, the partners may choose to work on a client’s case with Opening Doors, an agency in Sacramento, and partners in the South Bay Coalition, dividing social services, and legal services based on convenience to the client and conflicts of interest issues.

§ 2.3 San Jose Model In the San Jose and South Bay Region, two entities exist that work in tandem on human trafficking cases, as well as community outreach and training. The South Bay Coalition to End Human Trafficking (“South Bay Coalition”) consists of service provider and law enforcement agencies, as well as other interested parties. The San Jose Police Department Human Trafficking Task Force is primarily law enforcement agencies, along with the co-chairs of the South Bay Coalition.

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As one of the oldest task forces in the region, members of the North Bay Task Force are very active in training and building the capacity of other NGOs and law enforcement agencies around the country. Most recently its representatives from the USAO, ICE, and API Legal Outreach were invited to present and train at the Department of Justice’s National Human Trafficking Conference in Washington, DC in early 2010. Its members have also done trainings and provide regular technical assistance to other task forces, such as the Sacramento Task Force and the Missouri Task Force. In July 2010, the North Bay Task Force—through API Legal Outreach, Asian Women’s Shelter, and The SAGE Project—organized and trained over thirtyfive case managers. Representatives from the USAO, FBI, ICE, and SFPD came to the training to demonstrate the commitment of the North Bay Task Force to the work with the NGOs. While the training was aimed to develop better networks and procedures with case managers in the North Bay Task Force, it also connected and trained members of the newer Contra Costa Task Force and the East Bay Task Force.

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The South Bay Coalition grew out of the San Francisco Bay Area Trafficking Task Force. A staff member of a San Jose domestic violence community-based agency Next Door Solutions to Domestic Violence (mentioned above) had been active outside of the United States on issues of human trafficking, and had assisted service providers in a large human trafficking case in the East Bay. After becoming involved in the San Francisco Task Force, she decided to organize a coalition in San Jose. She initially pulled together other agencies already working together on domestic violence cases, including legal representatives working on VAWA and U visa cases. In February 2005, the South Bay Coalition was formed. Working with two co-chairs and incorporating domestic violence shelters and hotlines, as well as case managers; immigration legal services providers; and unaccompanied minor service providers, the South Bay Coalition began to meet on a monthly basis. The goal of the South Bay Coalition is to bring together community-based agencies that might serve human trafficking survivors in order to identify and coordinate services needed for these survivors. Law enforcement agencies were invited to actively participate in the monthly meetings. Within a year of the South Bay Coalition’s formation, the San Jose Police Department received funding to establish the San Jose Police Department Human Trafficking Task Force (“SJPD Task Force”). Consisting of law enforcement agencies, including San Jose and Santa Clara police, Santa Clara County Sheriff, Santa Clara County District Attorney, Immigration & Customs Enforcement (ICE), FBI, the U.S. Attorney, and State Department, the Task Force received funding to train law enforcement and the community generally on issues of human trafficking. The co-chairs of the South Bay Coalition sit on the SJPD Task Force as the only representatives of non-law enforcement agencies. In 2005, with the input of South Bay Coalition agencies and law enforcement, a Protocol was drafted defining human trafficking and discussing the extent of human trafficking, delineating the philosophy of “victim-centered” approach to human trafficking by all parties— community-based, legal, and law enforcement—and discussing the roles of the parties, including how the network of agencies would be activated as a survivor is identified. Emergency contact numbers are included in the Protocol, as well as other resources. The Protocol has been updated as recently as 2009. See Appendix B: South Bay Coalition to End Human Trafficking Protocol. The South Bay Coalition has had its growing pains as disparate groups have learned to work together, communicated their respective roles and responsibilities, and have worked to build a level of professional trust. Until 2009 the South Bay Coalition and its members received very little funding to do the team-building work, but each agency had members deeply committed to the process. Over the years, the agencies have coordinated efforts to identify and serve human trafficking survivors. The South Bay Coalition has grown to include faith-based organizations, other community-based organizations, and interested individuals. Requests for South Bay Coalition and SJPD Task Force participation and presentations on panels and at community forums addressing human trafficking issues have increased. Recently the South Bay Coalition and SJPD Task Force have presented at the U.S. Department of Justice National Human

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Trafficking Conference in Washington, DC in early 2010 and the National Sexual Assault Conference in Los Angeles, CA in late 2010. Members of the SJPD Task Force have helped train the California Highway Patrol statewide as part of state legislation mandating that law enforcement assess victims of domestic violence or rape for possible human trafficking (AB2810). The South Bay Coalition has developed a website and listserv to provide information to the community and to facilitate communication among its members.

The South Bay Coalition has designated a point person, who works in an agency with a confidential hotline, and who serves as the point of contact in the case that a human trafficking survivor is identified. The point person activates the network of service providers. The South Bay Coalition has also designated a media person, who coordinates media response on inquiries about human trafficking issues and about trafficking cases in the region Previously, the South Bay Coalition had an Executive Committee, consisting of two cochairs, a membership chair, a fundraising chair, legal advisor, a community education chair, and a treasurer, and a part-time coordinator to build and strengthen the South Bay Coalition. This coordinator facilitated communication among agencies, as well as assisted in efforts to make the South Bay Coalition sustainable over the long run, even with personnel changes. With the assistance of the Coalition Coordinators, the Executive Board of the South Bay Coalition met twice in retreats and begun to restructure the Coalition. The following are the Coalition’s mission statement, vision and purpose:   

Mission Statement: Utilizing a victim-centered philosophy, to ensure the protection of victims, the prosecution of offenders, and the prevention of human trafficking and slavery through an effective, coordinated partnership. Vision: The vision of the South Bay Coalition to End Human Trafficking is a world free from slavery. Purpose: (1) To provide a comprehensive service response; (2) To perform community outreach and education (increasing awareness); and (3) To provide trainings for professionals, including both service providers and law enforcement.

In addition, bylaws have been created, as well as membership, voting, and leadership guidelines. As such, the South Bay Coalition has shifted from an effort driven by the Executive Board with report backs to the membership, to a working membership organized into four standing committees (Victim Services, Legal [Civil and Administrative] Services, Law

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In 2009, the South Bay Coalition received funding from OVC as the service provider partner of the SJPD Task Force. Since then the SJPD Task Force and a number of service provider agencies within the South Bay Coalition have received additional funding. Receipt of funding from different sources has created a need to work on a master plan for the Coalition, as well as ways to track services and statistics. The South Bay Coalition is also working on a twoyear plan. In addition, the Coalition is focused on re-visiting its Protocol, creating specific protocols for media and standards for case management, and monitoring gaps in services that may need addressing.

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Enforcement, and Community Outreach and Education Committees), as well as ad hoc committees, supported by the Executive Board.

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The Committees of the South Bay Coalition have chairs who serve up to four years, and then rotate into the Vice Chair role to support the incoming Chair. The Committee Chairs and the Coalition Chair constitute the Executive Board. To date, this restructuring is a work in progress, but the results have energized the membership and engaged the wide range of talents and knowledge of the South Bay Coalition membership. In 2011, the four member agencies of the South Bay Coalition together with the San Jose Police Department Human Trafficking Task Force received one of the pilot “Enhanced Model” grants, designed to encourage closer collaboration between law enforcement and victim services providers. With this funding, the scope of services provided by the South Bay Coalition grantees expanded to include legal and victim services to domestic human trafficking survivors, in addition to foreign-born human trafficking survivors. The Coalition and Task Force have seen a significant increase in the number of survivors served, both noncitizen and citizen survivors. The Coalition has continued to reach out to marginalized communities, including many isolated farm communities in the areas served by the Coalition. A member of the South Bay Coalition organized the Central Coast Coalition based in Monterey, California, and modeled it along the lines of the South Bay Coalition. Given that the San Jose Police Department Human Trafficking Task Force serves Santa Clara, San Benito, Santa Cruz and Monterey counties, these two Coalitions were designed to work in tandem on various issues regarding human trafficking in the region. However, with the loss of its leadership, the Central Coast Coalition has begun to disintegrate. The South Bay Coalition has undertaken to meet periodically in the Central Coast region with stakeholders in order to assist with and support efforts to reenergize the Central Coast Coalition with the goal of strengthening and stabilizing its structure and membership. The success of the South Bay Coalition can be attributed in part to pre-existing relationships between agencies and staff. Many of the agencies had a working relationship in the area of domestic violence work, and some of the law enforcement representatives had existing working relationships with community based organizations in this area as well. The other factors for the success of the South Bay Coalition have been the dedication of its participants, even with limited or no resources initially, and the constant effort of all parties to further communication and build the team. Finally, the focus has always been on serving the needs of human trafficking survivors. Remaining focused on this mission has helped when difficult challenges to team dynamics have arisen.

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CHAPTER 3 TRAFFICKING BASICS

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This chapter includes: § 3.1 § 3.2 § 3.3 § 3.4 § 3.5 § 3.6 § 3.7

Identifying Potential Victims of Human Trafficking ......................................... 3-1 Who Is Trafficked to and within the United States? .......................................... 3-1 Who Are the Traffickers? ................................................................................... 3-3 How Does Recruitment Happen? ....................................................................... 3-5 What Kinds of “Industries” Are Involved in Human Trafficking? .................... 3-8 What Kind of Obstacles Do Victims Face When Seeking Help?....................... 3-9 Understanding Intersections between Labor Exploitation, Smuggling, and Human Trafficking .................................................................................... 3-10

§ 3.1 Identifying Potential Victims of Human Trafficking

§ 3.2 Who Is Trafficked to and within the United States? Young, female, from a small village in Asia, and forced into the sex industry. Young, female, foster child, runaway, from the streets of Oakland, and pimped out by her much older boyfriend. These are some of the most common stereotypes of a human trafficking victim found in the United States. However, as you may already know, men and women and children of all genders have been trafficked into the United States and their ages can span from toddlers to 3-1

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The federal legal definition of human trafficking under the Trafficking Victims Protection Act of 2000 (TVPA) and who is considered a victim of a severe form of human trafficking under the statute should be used as a guidepost regarding identification of victims. The reason for using the TVPA definition of human trafficking to guide your identification and screening mechanisms is because certain forms of relief, such as the T and U visas, are specifically tied to the individual’s ability to show that he or she meets the TVPA definition. In this section, we will provide an overview of who is trafficked, who may be a trafficker, how recruitment happens, what kinds of industries are involved, and what barriers victims may face in successfully seeking and securing aid. We will also go over the most common questions about the TVPA definition of human trafficking, such as the difference between exploitation and forced labor that rises to the level of human trafficking, and the difference between “alien smuggling” and “human trafficking.” Finally, we will describe model processes for triage and network activation when a survivor is discovered, depending upon the type of organization or entity that is involved with the initial discovery. Our objective is to help put some flesh on the legal bones of the trafficking definition in order to help advocates visualize and imagine what a human trafficking scenario can look like in reality versus on paper.

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seniors. A trafficking victim is not defined by specific demographics, but by the crime and human rights violation that are committed against the victim. Thus, victim profiles can vary significantly. Victims can be educated and possess advanced degrees, such as nursing or teaching licenses, but they can also have minimal formal education. Geographically, trafficked persons have been found in the United States from nearly every major region in the world. In the San Francisco/San Jose Bay Area alone, we have served trafficking survivors originally from Africa, East Asia, South Asia, Southeast Asia, Eastern Europe, Western Europe, Mexico, Central America, and South America. We have represented children as young as 9 years of age to adults in their 70s. These are human beings from rural as well as urban settings—from a tiny village in the Andes Mountains to the ultra-modern metropolises found in East Asia. The range of forced labor includes service industry work, domestic servitude, agricultural work, sweatshops, cottage industries, hybrids (“intersection” cases), and more. Trafficking under the law does not require the element of movement and country boundary-crossing. Thus, U.S. citizens and legal permanent residents can also be trafficked, and these are usually referred to as domestic trafficking cases. However, given that U.S. citizens and legal permanent residents are usually not constricted by their legal status to work in the U.S., the vast majority of labor trafficking cases will involve foreign nationals. Foreign nationals are also frequently subjected to sex trafficking. However, most domestic trafficking cases involve adult and minors in the commercial sex industry. Usually, the focus is to identify at-risk populations of people who have an incentive to migrate or to take on propositions of risky work situations due to their individual circumstances, which may involve issues of poverty, gender violence, civil war, and the need to economically support their family. Hence, it is not as important to focus on movement, but on methods of recruitment and the fraudulent terms and conditions promised, which may have influenced the victim’s physical movement. Because the method of entry for foreign nationals into the United States affects their immigration status, and because immigration status is constantly used to coerce trafficking survivors to stay in their trafficking situation, the method of entry is worth examining but does not in it of itself form the basis of a trafficking claim. Almost all foreign national trafficking survivors will have concerns about their immigration status. Understanding your client’s method of entry into the United States and immigration status upon entry may help inform the basis of the trafficking narrative. Most foreign-born trafficking survivors enter in one of the following manners:   

Entry without inspection through a border or port (usually “smuggled” into the country, “stowaway,” or caught at the border and placed into asylum and/or removal proceedings in the United States) Entry with false documents (another person’s passport, green card, etc.) Entry based on a valid employment visa, but as a nonimmigrant whose presence is restricted to the employer (e.g., H-1B, temporary worker in a specialty occupation, such as teaching; H-2B, temporary worker in a low-skill job, such as in the hospitality industry; H-2A, agricultural worker; P, athlete, artist, or entertainer and those who support them, such as non-performing circus laborers; A-3/G-5, domestic employee for

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   

foreign government officials and representatives of international organizations; and J, exchange visitor.) Entry based on a tourist visa (B1/B2 visa) Entry based on a family-based visa (e.g., K visa, fiancée visa; I-130 petition, etc.) Entry based on a student visa (F visa) Crewman without permission to disembark (C and D visas)

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An individual can facilitate their own entry into the United States through any of the above methods and can still be considered a trafficking survivor. The method of entry does not have to dictate and/or be directly related to the trafficking. However, the method of entry affects the victim’s immigration status, which is commonly used by traffickers against the victim. Occasionally someone may arrive in the United States only to be trafficked once he or she is present in the United States.

Similar to the example above, a victim’s continued presence in the United States can be on account of the trafficking, even though the trafficker was not directly responsible for bringing the victim to the United States. You must put aside possible pre-conceived notions about “what a human trafficking victim looks like,” or where his or her trafficking occurred. This is the fundamental first step in designing initial screening procedures and mechanisms.

§ 3.3 Who Are the Traffickers? Likewise, it is crucial to confront any stereotypes that you might have about who may have perpetrated the bad acts against the client. Traffickers have been, and can be, individuals who are not a part of any kind of organized crime, who have no involvement with the sex industry, and who do not belong solely to one gender or age group. It is true that we have encountered a certain racial and ethnic dynamic between traffickers and their victims in which traffickers target members of their same ethnic or racial group for victimization, but it is not an

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Example: Angelica fled her home country because her husband, a local judge, had tried to kill her a few times. Any requests for help with the police went unheeded. As she crossed into Arizona through the desert, she was caught by Customs and Border Patrol (CBP). She told the CBP officer about her husband trying to kill her, and he showed her how to apply for asylum. Unfortunately, her hearing date for asylum was set more than a year out because of the congested court docket. In the meantime, her sister paid for her bond and told her she could come to San Francisco to live with her while her court date was pending. Upon arrival in San Francisco, her sister’s husband made a few advances on her. When Angelica tried to tell her sister, they got into an argument, and her sister asked her to leave. Angelica met a woman named Silvia through church who said that if Angelica came to work for her to care for her mother, she would help her. A year later, Angelica called her sister secretly, begging her for help. Silvia had taken her passport and documents and was forcing her to care for her elderly mother. Silvia told Angelica that if anything bad happened to her mother, Angelica would be liable and arrested for senior abuse. Angelica had also missed her asylum hearing.

all-encompassing dynamic and should not be a basis for assuming anything about who the trafficker might be. For in fact, traffickers can, and have been, individuals who seem to be pillars of the community, or trusted family or friends of the victim.

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Example: The economy did not seem to be improving in Ana’s home country. Even with a teacher’s degree and advanced certification in the biological sciences, she was unable to secure full-time employment as a teacher. When she saw the advertisement from the job placement office for teaching jobs in the United States, she applied and was happy to sign a promissory note in the amount of $15,000 for the necessary paperwork and travel visas to secure a full-time job as a teacher in a public high school in a U.S. Midwestern state. When she arrived in the United States, Ana discovered that there were ten other teachers from abroad who had been brought to the United States by the same job placement firm and who all had the same acceptance letter for the same exact job position. Instead of teaching, Ana was told that she would be performing manual labor cleaning houses while waiting for additional teaching jobs to become available. She could refuse these new terms but her refusal would result in imprisonment for her inability to pay the $10,000 (plus the accrued interest on this amount) when she returned home and her family would be “strongly encouraged” to pay Ana’s debt by an associated collection agency known for its physically brutal collection tactics. Moreover, her immigration visa had been revoked based on the fact that she was not working in the job that she had specified in her visa application and therefore, the placement firm informed her, she was in danger of being arrested by immigration authorities in the United States if she did not want the placement firm’s help. Example: Miguel was approached by a neighbor regarding a wonderful chance to work and live in the U.S. She was a long-time family friend who they all called “Auntie Ella” even though she was not a blood relative. She told him that she had relatives in the United States who owned a business and could give Miguel a job. Because he was only 15 years old, the owners of the business promised Miguel that he could go to school parttime and work part-time. Miguel’s parents and relatives encouraged Miguel, and his decision to go was applauded. Auntie Ella arranged Miguel’s travel to the United States and told him that her family in the United States had prepared living quarters for him with other workers in a building owned by the employers. Miguel’s salary would be automatically sent to his family. But when he arrived in the United States, he was forced to regularly work 17-hour days with no days off for nearly three long years. He was denied food when his employers felt that he was “disobedient,” but was never physically beaten. During his period of enslavement, Miguel never actually saw any pay and had no way to communicate with his family back home to get help or to ascertain if they had received any of his pay. Example: Mercedes was raised by her grandmother after her mother, Magdalena, left the country to seek more job opportunities. Magdalena would send home $50 (U.S.) a year, citing the difficulty in earning money in the United States. Ten years later,

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Magdalena, sent for Mercedes, now age 19, to join her in the United States. She said she would resume her role as Mercedes’ mother, help Mercedes attend school, teach her how to drive, and eventually help her get a job. Magdalena paid for Mercedes to fly into the United States on a tourist visa. Upon arrival, Magdalena introduced Mercedes to Magdalena’s new husband, Luis. Instead of sending Mercedes to school, Magdalena told Mercedes that she now owed her $2000 (U.S.) for the airplane ticket and visa, and that she had to pull her weight around the house. Mercedes was told to go with Luis to work at his auto body shop three days a week, where she would work cleaning cars and managing the office. After two weeks, Luis started raping Mercedes regularly at the shop at night. When not working at the auto body shop, Mercedes had to cook and clean around the house and help Magdalena with the daycare that she ran out of her home. When Mercedes told Magdalena what Luis was doing to her, Magdalena slapped Mercedes in the face and accused her of seducing Luis.

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§ 3.4 How Does Recruitment Happen?

Example: Laura was in trouble. Her credit cards were maxed out. Her parents were out of patience with her spendthrift ways and refused to give her any financial support unless they saw some marked improvement in her college grades. She was regretting the loan she had obtained from the loan shark recommended by her girlfriend and now she needed to make a lot of money quickly in order to pay off all this debt that she felt was hanging around her neck like a ten-ton weight. She was surfing the internet and felt her heart jump when she found herself on a site that promised glamorous, high-paying jobs in America for attractive, intelligent, young women. Only attractive and adventure-seeking girls need apply! Laura called the toll-free number and just like that, she had an appointment with Mr. Lee the very next day. She was excited at the possibility of some adventure and even more excited that she could soon be making the money that she needed, not to mention getting to travel to the United States to do such glamorous work. In the next few weeks, Laura was swept up in a whirlwind of activity. Mr. Lee arranged for her to meet and interview with his associates in the capital city; these associates handled the paperwork and made travel plans for her; and when she found herself

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Note that in sex trafficking, the TVPA does not require there to be any force, fraud, or coercion when the person induced to perform any commercial sex act is under 18 years of age.

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Traffickers can use highly sophisticated methods to lure and trap their victims in modern forms of enslavement. They can also use the simplest means to accomplish the same exploitative objective. The common denominator is that traffickers use some form of force, fraud, or coercion to make it virtually impossible for the victim to reject the terms of employment.1 The more sophisticated schemes can involve, as in Ana’s situation, a highly organized operation involving official advertisements, procedures, and a network or connections in both the home country as well as in the U.S., such as a seemingly legitimate job recruitment and placement firm or an illegal clandestine criminal operation.

stepping off the plane in Los Angeles, they even had her greeted by their U.S.-based colleagues. These colleagues drove her to her final destination: a nightclub where they took away her passport and identification, locked her in a room with several other terrified young women, and told her that she would be sexually servicing customers nightly until she paid off her newly acquired debts. Refusal would mean physical abuse for her and, she was warned, her parents and younger sister back home would also suffer as a result.

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In other situations, such as in Miguel’s and Mercedes’ cases, the recruitment takes place in a less sophisticated manner—through a family friend or family member—but it may be considered an even more nefarious kind of recruitment because it takes advantage of relationships and an individual’s trust in another member of his or her community or neighborhood. Acquaintances, friends or family members can be the ones spreading the gospel of possible employment, financial reward, and opportunity for a better life for oneself or one’s family. Example: Mala’s cousin told her that she was getting married and had quit her job as a nanny for a journalist and his wife and their young child. She suggested that Mala meet the family and see if they might offer Mala the position as nanny. They met and Mala was pleasantly surprised at how easy it was to talk to the couple and she found herself charmed by the happy little boy. When she started working for them, Mala was happy to be earning good money with such a nice family but she did miss her young daughter who was being cared for by Mala’s mother in her hometown. A year into the job, Mala’s employer asked her to come to the United States with them as the journalist had won a scholarship to study there. She was promised a raise and time off to attend mass at the local Catholic Church as well as weekly phone calls with her daughter and parents. Mala could not say no although she dreaded leaving her own child behind. After the first couple of weeks in the United States, Mala was shocked when her employers told her that she would not be receiving any raise in salary: “You cost us a lot of money to feed and to bring here to the United States, Mala.” The next week, she was told that she couldn’t attend church since, “You are here to work, Mala, not to have time off.” Within a short while, Mala found herself being made to sleep on the floor next to the young child’s toddler bed because the parents were fearful that he would roll himself off the bed and onto the ground. She was not being paid anything, not even her original salary, since she was being provided with a bed and food according to her employers; and she was forbidden to make phone calls or to use the computer to email her family back home because it was too expensive. When she finally asked to be allowed to quit and return home, she received her first, but not last, beating. Her physical belongings, including her return airplane ticket and passport, were locked away, and she was no longer allowed to leave the house without supervision until, according to her traffickers, she showed proper respect and could be trusted. Besides word of mouth, advertisements on the internet, in newspapers, on the radio and elsewhere can be used to recruit potential victims. Marriage bureaus and employment agencies may be conducting legitimate, as well as fraudulent operations. Even seemingly reputable

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businesses or entities can be involved in the crime of human trafficking, such as being endorsed by celebrities or well-regarded by the general trade or industry in which they function- one job placement agency was even endorsed by both the head of an official law enforcement agency and several senators who had their election campaigns supported heavily with donations by the owners of the agency. Therefore, it is very important that you ask open-ended questions of your client during an initial screening to obtain as much detail as possible about how, when, where, and why your client came into contact with his or her trafficker.

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In the digital age, technology is playing a larger role in helping traffickers recruit potential victims to the United States. Technology allows recruitment agencies to spread the word, regardless of distance, at a low-cost rate. It is also far easier for family friends, family members, and acquaintances to use these connections to contact the victim directly and build up trust over time through promises over email, instant messaging, social media networks (e.g., Facebook, Orkut, etc.) to build what the victim thinks is a trusting relationship.

Example: In Ana’s case, the job placement office for teaching jobs in the United States figured out that it was easier to recruit people through online posts. They also started asking certain people with “success stories” teaching in the United States to text their relatives about this job opportunity and to email links to their website. They were so successful with “placing” the teachers that their government listed them as an official job placement agency in the United States on their government’s overseas worker website. In most of these cases, victims are promised certain things to come to the United States, and voluntarily travel to the United States. Other times, as mentioned earlier, they may voluntarily come to the United States and subsequently be recruited into a working situation that they cannot leave, and subsequently become trafficked. Sometimes it may be that your client was

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Example: Sabina recently joined Facebook and would go to the local internet cafe on her days off to connect with friends and relax from her stressful life. Through Facebook, she felt she could better maintain friendships with people she didn’t get to see as much because she had been working so much lately. She also started to get in touch with friends and family members overseas that she had not talked to in years. A distant cousin of hers named Nani (Sabina’s father and Nani’s father were second cousins) who she hadn’t seen in years after Nani’s family immigrated to the United States, added Sabina as a friend. Sabina and Nani began messaging each other, and Nani would show Sabina pictures of all the fun parties she attended, Disneyland, her beautiful house and children, and her life in the United States. They messaged each other every day, chatting about their lives. When Sabina told Nani the difficulties with her life, Nani encouraged Sabina to come to the United States. Nani would help pay for a coyote for Sabina and would help her get her dream job working with children lined up for Sabina. Nani would even let Sabina live with her for free until she earned enough money to move out. Upon arrival, Sabina realized the only “job” that Nani had lined up for her was to care for her three children and clean for the entire three-story house. Sabina slept in a closet in one of the spare bedrooms. Nani increased the debt that Sabina owed her for the coyote, charged her for rent, and threatened her with deportation if she tried to leave.

brought to the United States by force. She may have been drugged and brought into the United States unconscious, sold to the trafficker by a parent, or kidnapped by smugglers and held hostage and subsequently trafficked. These situations are possible, but the more common scenarios are the ones similar to the types of recruitment listed above. Example: Beneficio left his home country because gangsters were threatening to kill him if he did not join their gang, and the police were threatening to arrest him because they believed him to be in a gang. He decided to join his uncle in California, who said he had a job for him. As he made his way to the United States, he met someone at the United States-Mexico border that said that they could cross him into the United States for $2000. Beneficio agreed, but upon crossing the border into Texas, he was immediately forced by six armed coyotes into a holding house. He was held hostage there for three months while the coyotes called his family members to extort from them a total of $6000. During his time there, he was forced to help transport drugs back and forth across the border upon threat of death. The coyotes eventually forced him to work at a farm in Texas doing agricultural work until he earned enough money to pay them another $3000.

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§ 3.5 What Kinds of “Industries” Are Involved in Human Trafficking? Human trafficking is not confined to a single industry. Victims have been discovered or have escaped situations of enslavement from sex work, domestic service, marriage, factories, agriculture (field work, care of animals, packing plants, etc.), restaurants, construction, hotel housekeeping, hospitals, public schools, and more. The professional and skilled-labor sectors are not immune from having victims of human rights violations. Domestic servitude can be the fate of a “hired” servant or the wife in a servile marriage or the half-sibling. Labor can occur in the form of cottage industries (small businesses run out of the home. It is not surprising, however, that many trafficking cases involve “invisible” and “informal” sectors—work in industries that are either by nature criminal (e.g., prostitution, selling drugs) or hidden from sight and not protected by the full strength of employment and labor laws and organized labor efforts (e.g., domestic work, housekeeping). Example: Candy was brought to the United States to care for her relative’s baby. Soon she discovered that she was caring for many children. Her relative was being paid by the parents of the children to provide in-home childcare, but Candy did not receive any of that payment. Moreover, when Candy was not watching the children, her relative had Candy cook sweets from their home country, which the relative sold to friends and colleagues. Again, Candy was not paid for that work. Repeatedly Candy was told she should be grateful for a place to stay and food to eat. She was also told that her work went to pay off the cost of her transportation to the United States.

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§ 3.6 What Kind of Obstacles Do Victims Face When Seeking Help? Victims of the kinds of human rights violations that we have described thus far, often have little recourse to escape or help of any kind. Not only are there physical and external barriers to aid, such as physical isolation or restraint and the disadvantage of speaking a different language and/or inability to communicate with others, but there are also a myriad of non-physical influences that may prevent a victim from successfully seeking or securing assistance.

Many of the cases that we have dealt with have involved victims that have no physical shackles placed upon them. There is a level of physical freedom and unrestricted movement that these clients were allowed by their traffickers. For example, some had keys to the home or other places of employment. Others were permitted to go to the store or religious houses of worship with regularity. Still others were allowed to possess and use cell phones and make telephone calls of their choosing. But none of these individuals were able to seek help because of the environment of fear and coercion that was part of their everyday existence. The very concept of physically reaching out and obtaining help, of leaving their situation, was inconceivable. Survivors have expressed that their fear of being physically harmed, their fear that loved ones would be hurt, their feelings of shame, scorn, humiliation or punishment upon being returned home, their lack of accurate knowledge of their rights and available resources, and then their personal or culturally-based commitment to paying off a debt or complying with the terms of an agreement, verbal or written, or their attachment to members of the trafficking family or group. These are all factors that prevent them from seeking an out from their trafficking situation. Example: Like every morning, Maribel poured coffee for Nancy, her employer. Nancy opened the newspaper and started making “tsk tsk” noises over and over. Maribel went to the kitchen and tried to focus on her morning chores. From the other room, Nancy

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Example: After her last beating, which had been particularly brutal, Jin decided she couldn’t take anymore. Jin ran to the door, flung it opened, and started running outside. Her employer started to run after her. Jin ran ever faster and kept running down the sidewalk of that perfect suburban neighborhood that her employer lived in. Pretty quickly, she outran her employer. But after running for about three blocks, Jin didn’t know what to do, or where she was going. She wasn’t even wearing shoes. She didn’t have any form of identification. She was here illegally. Jin saw another person and she tried to talk to them. The person immediately waved their hand at her to go away and went back into their house. Maybe she looked too much like a mess to talk to, or maybe she was the one who looked crazy. Maybe they didn’t want to get involved. She didn’t speak English, and she didn’t know what to say to that person anyways. Besides, the neighbor who she had left three notes for on the doorstep because they looked like they could read her native language had ignored her. Jin’s steps started to slow down. There was really nowhere to run, nowhere to go. She had no money, and she wasn’t near any stores or public transportation. Behind her, she heard a car. Her employer rolled down the window and said, “Get in and stop embarrassing yourself. You have nowhere to go, where do you think you’re going? You think you can run away? No one is going to help you.”

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started to say loudly for Maribel to overhear, “Look at all of these illegal people here these days. They are just getting deported left and right. Immigration must be everywhere looking for illegals. It sounds awful to be in these immigration detention centers. It sounds like people just get beaten and raped.”

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Example: “Yes mother, things are going very well for me here. I am treated well. I even have my own room.” Vera could hear her employer Anna on the other line listening in to her conversation with her mother. How could Vera say anything to her mother about what was really happening? Vera came to work in the United States to begin with, so she could fund her mother’s desperately needed heart surgery. Vera’s mother wouldn’t be able to stand that Vera had been reduced to sleeping in a closet and was being touched every night by Anna’s husband. Whenever Vera said anything close to resembling her depression and desire to go home to her mother, afterwards, Anna would say, “Do you want me to tell your mother what a prostitute you are? That I can sue you anytime for stealing my jewelry and lock you up? Do you want to cause problems? I can say anything at any time to give your mother a heart attack. Do you want to be such an awful daughter?” Again, it bears repeating that you should keep your questions open-ended when trying to gather information from your client regarding why he or she made the decisions and behaved the way that they did—this is crucial in order to help your client explain to authorities how he or she meets the definition of a victim of a severe form of human trafficking. If the authorities cannot grasp the force, fraud, or coercion that was brought to bear to control the behavior and decisions of another human being, it will be next to impossible to obtain necessary relief for your client. This brings us to an important follow-up point, which is that there is a difference between being smuggled into the United States, being exploited as an immigrant, and being a victim of a severe form of human trafficking and it directly implicates the element of force, fraud, or coercion in the TVPA.

§ 3.7 Understanding Intersections between Labor Exploitation, Smuggling, and Human Trafficking All severe forms of human trafficking involve exploitation, whether it is sexual exploitation or labor exploitation. And human trafficking often involves some form of unsafe or irregular migration. However, not all exploitative labor or smuggling of human beings into the United States involves human trafficking. At the end of the day, legally, smuggling is a violation of border laws, while human trafficking is a violation of human rights. Example: Simon and his younger brother, Paul, were out of breath, hungry, freezing, as their feet kept moving through the knee-high snow. They had followed all the instructions barked at them through the winter night by their coyote known to them only as “Joe.” They had climbed, jumped, swam, ran, and endlessly walked for what seemed like hours, and Joe told them that now they just had to get ready for the van that would pick them up and drive them to their destination in the United States, just south of their

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current location and across the Canadian border. Simon thought to himself that it would be easy in the United States to quickly earn the $5,000 (U.S.) cash that his relatives had loaned him to pay Joe for the trip. There was the white van—it stopped for a few seconds, the doors flew open, and Simon and Paul jumped in. That was the last they saw of Joe.

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The example above of Simon’s situation is one of a classic smuggling operation. He reaches an agreement with Joe regarding transportation facilitation and their relationship is brief, limited to only the travel, and then terminates. Both parties have agreed and kept to the terms of their arrangement. If, for example, Joe had altered the terms upon arrival in the United States and demanded more money from Simon and forced Simon to work off this added debt before Joe would allow Simon and Paul to freely and safely end their relationship, this could have morphed into a situation involving human trafficking as a result of the force (physically imprisoning Paul); fraud (Joe unilaterally deviating from the terms of the agreement); and coercion (threats of harm to extort labor and money from Simon).

Example: Mandy’s parents wanted her to come to the United States to work. They told her that she had cost them a lot of money because she is a girl and because she wanted to study. Mandy’s parents arranged for a smuggler to take Mandy to the United States without consulting Mandy. Mandy was transported through four countries en route to the United States. She was handed off from one group of smugglers to the next. Although Mandy’s journey was difficult, it was uneventful until she reached Central America. There her traffickers became abusive. They made Mandy and another female traveler cook and clean for them and give them massages. Neither Mandy nor the other female had a choice and neither was paid for these services. Mandy knew that she would have to work when she arrived in the United States to pay off the $30,000 debt for bringing her to the United States. She also had no idea where she would be required to work, how much she would be paid or for how long she would need to work in order to pay off her debt. Mandy was lucky. She was identified before she reached her final destination. While at first glance this may seem to be an issue of smuggling, there are two pieces that make this fit within the parameters of human trafficking. First, Mandy was forced to work en route by her smugglers/traffickers. Second, Mandy was being harbored and transported to the

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In other words, if person A reaches an agreement with person B regarding moving A into the United States without proper documents for a specified amount of money, and subsequently, person A’s travel to the United States is successfully facilitated by person B, this is a situation that involves the smuggling of A by B. This transaction does not, as described, involve any human trafficking because there is no force, fraud, or coercion of person A by person B nor any type of forced work. Keep in mind that a smuggling situation typically has limited interaction between person A and person B—there is no on-going relationship between them beyond the facilitation of migration. As in the above example, Simon and Paul never see Joe again after they reach the United States/Canada border. However, a smuggling situation should be investigated further if you suspect that something may have taken place that altered the nature of the smuggling situation into one that could fall under the purview of the TVPA.

United States to work in an unknown type of work with undefined conditions (hours, length of employment, wages, etc.) As such, Mandy was being harbored and transported to the United States for debt bondage.

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Asking more questions is key in situations when you may have a client who is describing what appears to be solely labor exploitation. For example, their work situation involves nonpayment of wages or extremely low wages; poor or unsafe working conditions; and/or long hours without proper breaks. The questions that you should keep in mind when conducting your screening is whether or not the individual was able to leave at will or unable to leave because there was some imposition or use of force, fraud, or coercion by the employer? You will need to explore the client’s whole experience with the employer to determine if this was an unfair and exploitative work situation or if the situation became one involving human trafficking because your client was unable to safely exercise his or her free will and leave. While harder to establish, the statute also refers to provision of someone, harboring someone, and transporting someone for the purposes of involuntary servitude, debt bondage, peonage, and slavery. The statute also says that a person needs to be in the United States or at a point of entry on account of the trafficking. Thus, someone discovered at or near the border may qualify as a victim of human trafficking, even though she or he has not made it to their final destination. As in the case of Mandy, it is important to ask questions about the arrangements made with traffickers, what was said and what was left uncertain, and what happened en route to the United States that would illustrate the traffickers’ ultimate intention with respect to the victim. These cases are harder to prove since the person never made it to the final destination, but just because a trafficking victim was lucky enough to be identified before being forced to work at their final destination does not make this less of a human trafficking case. Many labor exploitation cases involve gross violations of workers’ rights, but may not be easily identified as trafficking cases or eligible for T visas. In these cases, it is important to recognize that there may still be legal redress for the victims in the forms of U visas and civil claims. Many enumerated grounds for U visas, such as extortion, felonious assault, perjury, witness tampering, stalking, fraud in foreign labor contracting, in addition to trafficking, involuntary servitude, peonage, and slavery occur in scenarios involving workplace crimes. For more information about obtaining U visas for more general labor exploitation and workplace crimes, visit National Employment Law Project (NELP)’s and ASISTA’s websites for resources.2

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A useful webinar is http://nelp.3cdn.net/1e566e54df313c869c_dfm6bqpbc.pdf.

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CHAPTER 4 THE STAGES OF A HUMAN TRAFFICKING CASE AND THE NEEDS OF THE SURVIVOR

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This chapter includes: § 4.1 § 4.2 § 4.3 § 4.4 § 4.5

Overview ............................................................................................................ 4-1 Emergency Stage ................................................................................................ 4-3 Non-Emergent Crisis Stage ................................................................................ 4-6 Stabilization ........................................................................................................ 4-7 Integration .......................................................................................................... 4-9

§ 4.1 Overview One of the driving forces of a team-based approach is working together to address the multitude of needs that each individual trafficked person has during each stage of a trafficking situation. The below chart is—though not exhaustive—a list of the needs that any single trafficked person might have. If you are representing more than one survivor concurrently, you can only imagine the difficulty you might have in meeting these needs. Not only would it be virtually impossible for a single individual to meet these needs competently, but it has been our experience that no single agency or entity can meet all of these needs. A client’s needs may also change over time. Therefore, having a team of advocates working together can mean the difference between successful outcomes and costly, painful mistakes. Therefore, understanding the phases that a trafficking case goes through and what range of needs a trafficked person may have during each phase, is a valuable first step in planning and organizing yourself and your team. These stages can be divided into four major stages: 1) emergency; 2) non-emergent crisis; 3) stabilization; and 4) integration.

emergency shelter

Non-Emergent Crisis Stage shelter

Stabilization Stage long-term housing options, such as transitional housing

Integration Stage low-income housing large enough to fit derivative family members

basic necessities (food, basic necessities (food, financial literacy: job-training or school, budgeting; banking; taking care of debts clothes, toiletries) clothes, toiletries) relief from boredom and depression,

developing or improving healthy living habits: sexual and physical education

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Emergency Stage

starting to nest emotional health: leadership development, selfesteem issues, healthy relationship development

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reunification with family or loved ones medical/dental/vision exam and treatment

medical/dental/vision attention

language support

language support

cultural support

cultural support

social services needs assessment

continuing social services needs assessment and progress evaluation

safety plan

continuing safety assessment

continuing safety planning

communication with family/loved ones

engagement: a) relief from depression, boredom; b) preparation and plans to reunite with family/loved ones; c) preparation and plans for work; d) accessing available benefits; e) learning how systems work and how to independently travel; “nesting”—plans to acquire his or her own possessions

legal: adjustment of status; immigration benefits for derivative(s); on-going criminal proceedings as victim/witness or defendant; on-going civil litigation or administrative proceedings accessing available social service benefits

legal: naturalization; immigration benefits for derivative(s); ongoing criminal or civil proceedings; ongoing legal information about rights (e.g., future workplace violations, domestic violence issues, benefits, housing, tax, etc.) continuing to access available social service benefits

legal: immigration relief (i.e., removal defense or T visa application, etc.); representation as a material witness; criminal defense; civil litigation; civil relief (i.e., protective order, child custody or

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support, etc.); assistance/accompani ment regarding law enforcement actions; repatriation to home country

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§ 4.2 Emergency Stage We define the emergency stage in our cases as the stage in which the trafficked person first comes into contact with an entity—individual, agency, or system—and the suspicion first arises that the individual in need may have been forced in some way to provide labor against their will. The trafficked person typically has little to no financial or emotional resources at this point and is not aware that her situation may allow her to access various forms of relief. The trafficked person may be free from her condition of servitude by this point or she could still be under the control of the trafficker. In either case, she is unsure about whom to trust and is unaware of what choices and options are available to her. They may not self-identify as a victim of any crime. If the trafficked person is discovered during a law enforcement action, such as a workplace raid or a search pursuant to a complaint, the survivor may have been further traumatized by the manner by which she was found and even less inclined to communicate the circumstances of her trafficking situation.

The supervisor listened to the worker’s story and suspected there was a serious problem with Isabel’s work situation. The supervisor did a quick search online for agencies that provided free legal services to individuals with employment issues and possibly immigration issues and connected with one of the service providers in the North Bay Task Force. Isabel was afraid of talking to anyone else but she did agree to return to the worker’s center in a few days so that the center could try and figure out if there was anything that Isabel could do, safely, about her current horrendous working conditions. Before she could make the decision to try and escape, Isabel needed to know that there

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Example: Isabel pushed the stroller, with her employer’s young child sleeping inside, past the entrance to the worker’s center. She paused, and then kept walking. At the end of the sidewalk, she turned the stroller and walked past the entrance again. She looked around carefully, but did not go inside that day. She would walk past this same door over a hundred times before she finally decided that it might be safe to venture inside. When she did, she spoke to an intake worker and answered the intake questions after the center staff person promised that all the information was absolutely confidential and would not be shared with anyone and that Isabel did not need to show any legal identification to get free advice about her work situation Are you working right now? Yes. What are your work hours and work days? I work every day from 6am to midnight. Are you being paid? Yes, $200 every month in cash. That’s when the worker stopped Isabel and asked her to wait while she spoke to the supervisor of the center.

was a safe shelter for her if she could successfully and safely run away from her trafficker’s home, that she would not be treated as a criminal for being without lawful immigration status, and that there was hope of being reunited with her four-year old daughter who was still in Isabel’s home country. Over the next two months, Isabel returned to the center several times and eventually felt safe enough to let the worker’s center contact the legal service provider in the task force on her behalf. Over one year later, Isabel would find the strength to escape with one garbage bag filled with her belongings from her employer to a local shelter with the help of the North Bay Task Force, meet with federal prosecutors to tell her story multiple times, and ultimately obtained her T visa and was reunited with her daughter who was able to immigrate to the United States as a T visa derivative. She also sued her trafficker successfully for an out-of-court settlement that was negotiated on her behalf by a pro bono law firm recruited by the North Bay Task Force service providers.

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Example: Sandy awoke in a hospital bed. She remembered nothing at first and then memory after memory flooded her thoughts: taking Bill’s prescription medication with a bottle of vodka, vomiting on the floor of Bill’s and Jane’s SUV as they raced to the emergency room, and being rolled onto the pavement outside the emergency room by Bill as he continued to coach her to “Use the name we told you to use, okay? You don’t want to get in trouble right? Your name is Cathy … Cathy.” A hospital mental health counselor came to Sandy’s room and told her gently that she had been found outside the hospital and that they had pumped her stomach and that everything would be okay. The counselor told Sandy that she wanted to just sit and listen if Sandy wanted to talk. She was so tired of being alone and afraid and miserable. To find the words to share everything that had happened to her seemed impossible but when Sandy started telling the counselor about her home in the Philippines and how she’d come to the United States with so much hope, she couldn’t stop when each word seemed to lift the weight of a brick off her shoulders and told the counselor about everything else—the forced prostitution, the beatings and rapes, her involuntary abortion and her desire to make it all end so she could be at peace. After a few days more in the hospital, the counselor was able to convince Sandy to meet with a Tagalog-speaking attorney who specialized in helping people in exactly the same kind of situation as Sandy. Sandy was eventually released to a shelter with nothing more than the clothes that she had on her body when she had been found. Example: The woman stared at the table in front of her. Her long, straight hair covered most of her face. Every question put to her was answered with a shrug. I knew that she had been detained by Immigration and Customs Enforcement (ICE) yesterday in a predawn law enforcement raid on the massage parlor and had been interviewed twice already by federal authorities. She looked like she hadn’t slept at all and wanted a cigarette. Badly. At the end of an endless, frustrating hour, I lamely repeated my name and the same message that I had given each of the almost one hundred women that we had interviewed at this military detention facility: I know you might have a lot of

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questions about who I am, what’s going on, what’s going to happen to you. I am not a police officer and I don’t work for the government. I am a lawyer and that means that everything you say to me is confidential, and I won’t share anything without your permission. I work with a group of people who help people who have been made to work in bad conditions and want this to stop. We don’t charge any money and we don’t expect anything back from you except your help on your own case.

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There might be a way to help you stay legally in the United States and work legally if that is what you want. But I can only help you if you want me to help you. Hopeful pause, but nothing. If you change your mind and want to talk to me about anything, please call me. It’s a free call and I won’t share anything you tell me with anyone unless you want me to. The woman looked at me suspiciously and fingered my business card, already dog-eared from having its corners bent and unbent repeatedly during our meeting. Am I going to jail? Her voice sounded accusatory and suspicious. It was the first thing she had said during the entire hour and even though I wanted to start telling her about all her possible options, I kept it brief and to the point. I don’t know. I can’t tell you what I think will happen or could happen to you unless I know what was going on at your work. Hope I did the right thing by telling her what she probably didn’t want to hear and not promising her anything that I couldn’t deliver. You said something about being able to stay here, work here. You mean, as long as I want? I let my breath out slowly and started telling her about the T visa, keeping it simple as I could, and that was the beginning at least of what would be a very long conversation. It would be our fourth meeting when she finally told me that she wanted to tell me her real name, wanted me to call her that and not the name her traffickers had given her.

During this emergency stage, the trafficked person’s needs can include emergency shelter, basic necessities such as clothes, food, and toiletries, medical/dental/vision attention and/or treatment since she may not have received any care for an extended period of time, and an advocate who can speak the trafficked person’s language and begin to assess the survivor’s social service needs and make the proper referrals. When a trafficked person feels unsafe and still distrusts many people, it can be difficult for them to know whom to open up to about their problems and fears. Often having a safe place to be, such as a shelter, may address these preliminary concerns. These are simply the basics at the emergency stage. Each trafficking case is unique, and needs can definitely differ; but the ones listed are the most common needs of the diverse range of trafficked persons that we have served. Providing legal assistance is important to assess the individual’s options for legal relief, such as immigration status and perhaps criminal

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Example: During Cristina’s intake, I asked her when was the last time she saw a doctor. Cristina replied over a year ago. I was stunned for a moment. Cristina escaped from her traffickers only two months ago. I again asked Cristina if she had been to a doctor since escaping her traffickers. She said no. I gently asked Cristina again why she had not gone to the doctor yet, especially because her traffickers had burned her and forced her into prostitution with other thirty men. Cristina broke down, finally admitting that she had not gone to do the doctor because she was terrified to find out that she had contracted something terrible, like AIDS, or was pregnant.

defense, but the trafficked person at this point must have her mental and physical needs attended to as a very first step towards recovery. When the individual’s safety—mental and physical—is secured, an attorney should be one of the very next resources made available to the survivor to ensure that her legal interests are protected.

§ 4.3 Non-Emergent Crisis Stage

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After the survivor is no longer in the trafficking situation and has made contact with preliminary resources such as a social worker, law enforcement officer or attorney, the survivor enters the non-emergent crisis stage. The nature of human trafficking—such as the isolation, inability to communicate freely with family or friends, restriction of movement and information—has a major impact on the trafficked person’s mental, emotional, and physical state. This impact begins to manifest itself in many ways after the trafficking situation has ended. Therefore, at this stage the survivor may still require help with securing safe housing, basic needs such as clothes and toiletries, access to medical care and treatment. But in addition to these “basics,” the survivor is also vulnerable to feelings of deep loneliness, boredom at the relative inactivity and emptiness of her daily schedule, and the desire to exercise her independence by working, earning money, and learning how the different systems function, especially if she was unable to gain that information during her time under the trafficker’s control. She may also begin to “nest” or want her own property and possessions so, as one former client explained, she could stop “feeling like a homeless person and start feeling human again.” Example: Gabby wandered around the common area of the shelter where she had been living for the last ten days. She felt like she was going to start climbing the walls soon. She kept thinking about her mother’s words on the telephone earlier that day, about Gabby’s daughter Alice needing milk and medicine. When was she going to be able to start making some money so she could send some money home? When was she going to be able to get her passport and her cell phone back from the officers who had taken them, they said as “evidence” in her case? At least her shelter advocate had scheduled a meeting with an immigration attorney for later that day. Gabby couldn’t wait to start working on whatever she needed to do to get Alice into the United States, to get a work permit, and to find out what was going to happen next in the criminal investigation. Gabby hoped she would be able to remember which buses to take and what tokens she was supposed to use to get to the meeting place. Maybe she could go and talk to her shelter advocate again to make sure she wouldn’t get lost because it was all new to her and still confusing. Many male trafficking clients in particular feel a responsibility to continue their roles as breadwinners in their family, and their ego and self-esteem are intrinsically tied to this role. Their feelings of depression and trauma may be harder to identify from the initial contact. Because it is harder to house male clients and they may be more willing to travel to find work, male clients may be more inclined to travel. It is important to establish geographic ties with your male client up front and explain to them the extent of your services, and to determine if there are other

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services that you can help them connect with if they move away to another city, county, and or state.

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This crisis stage can continue for weeks, if not months, until the survivor is employed with some meaningful activity of her own, such as attending school or working. Up to that point, the advocate can take steps to help alleviate these feelings of frustration and confusion and to continue to develop a relationship of trust with her client by explaining the steps that will be happening in the survivor’s case, providing an estimated timeline for these steps to happen, and most importantly, by following through with the actions that you say you will take on her behalf. For example, the survivor’s first official documents post-trafficking situation are usually some form from immigration, such as a new Form I-94 Arrival Departure record if she has been granted continued presence by the government, which allows her to apply for a work permit if she has not already done so, a state-issued identification document or driver’s license, and social security number. The advocate needs to ensure that she follows through in a timely manner with the survivor to help her apply for these documents and not delay if at all possible.

§ 4.4 Stabilization

Example: Patricia and her case manager, Darla, came into my office. We were meeting to prepare her paperwork to renew her work permit but from the matching worried frowns on their faces, it seemed there was something else that had arisen. I asked how her vocational school was going since she was enrolled to be certified as a nursing assistant. It’s fine. I’m doing pretty good. But I have something I need to tell you. I don’t know, but I think I’m in trouble. Patricia told me about how one of the women in her class, someone Patricia considered her friend, had asked her, Patricia, to cash a check at Western Union for her. Patricia had agreed and when she went to Western Union and passed over the check, the Western Union representative had called the security guard over. Patricia had been told that the check was a forgery and that she was in big trouble. The police had come to the Western Union office and Patricia had tried to tell them what

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The stabilization stage is the period of time when the survivor is on solid ground regarding her immigration status, public benefits, social services, housing, daily activities, as well as her mental and emotional health. If needed and desired by the survivor, she has secured lawful immigration status of some form which allows her the mental security of knowing that she cannot be summarily detained or deported by anyone, despite what her trafficker may have threatened, and that she has a right to be where she is. The trafficked person has access to public benefits, if eligible, and the social services that she needs to continue moving towards full integration, such as medical insurance, food stamps, and a firm relationship with a case manager or managers. Her housing situation is no longer temporary and she can take comfort in the knowledge that she has a place that she can call her home, even if it is a simple room in a boarding house or an apartment in a transitional housing complex. She can move about easily with confidence and no longer needs constant accompaniment by an advocate. The needs of the survivor seem to be addressed but it is also still a crucial time for the trafficked person to be supported in a more nuanced and complex way if she is to have a real chance at thriving in her new life.

had happened, but she was scared and didn’t know what was going to happen now. She had called her friend but her friend was ignoring all her calls. I could help her by finding out what was happening with the police and clearing up her role in any plan to pass a bad check. But Patricia was more hurt and shaken by her friend’s behavior than anything else and was very uncomfortable with the idea of continuing the nursing class since her friend would be there for the next several months as well. Example: When I woke up in the morning, I checked my email and found five successive, frantic emails from Joe. When I called him, he began to immediately explain that his new employer, post-trafficking situation, wasn’t paying him the right amount of money and he spent the last two nights at the care home sleeping on the couch in the lobby. He didn’t want to “bother” me, but he knew what was happening wasn’t right and wanted my help. I was floored—Joe had temporary immigration relief and work authorization. He had been so proud when he got that new job on his own. The T visa had been submitted for him, and a big criminal case was pending against his traffickers. How had he been exploited and so easily yet again? Example: The case manager called me crying. After all the hard work to work with the client to get her T visa, to go through that big criminal case, and to reunite the daughter with her from Guatemala, I just found out that the little four-year old is being sexually abused by our client’s boyfriend.

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During this stage, the needs of the survivor are not so much physical needs but more about life skills: how to build and maintain healthy relationships, financial literacy so she can become wholly self-sufficient with finances, changing the scope of what she may believe are her only choices in life regarding who and what she can be, and more. Often, even with immigration relief and stabilization, clients can easily be re-exploited again and need constant support and referrals. These are extremely difficult needs to try and help another human being meet; in fact, how many of us can say that we have those life skills well in hand even with the advantage of not having been in a situation of forced servitude or with the privileges and help that we may have had in our lives so far? Long-lasting effects of trauma also impinge on and hinder people’s ability to develop healthy life skills. There is no clear cut answer on how to help your client develop these life skills, but there are certain practical actions that have been extremely helpful in this area according to former clients that we have served. The key factors seem to be the opportunity to gain information or skills at your own pace, small but meaningful activities that enable a person to feel a sense of achievement and success, and the encouragement and support of others. For example, the agency Narika in the East Bay offers the SEED program, a twelve-week course, free of charge and with childcare provided, which is designed to foster women’s economic independence through the development of leadership skills and the encouragement of personal and professional growth. The program teaches individuals such practical skills as how to create and adhere to a monthly budget; how to prepare a viable resume, dress and conduct yourself in an employment interview; how to use the

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internet as a resource for anything from discount shopping to connecting safely with friends and family; how to confront and resolve conflicts in your relationships; and more. The beauty of this program is that it helps build confidence and sound judgment in incremental steps and through activities that each individual can pursue at her own pace. The program is offered three times a year, and with Asian Women’s Shelter, is offered once a year in San Francisco.

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§ 4.5 Integration Integration is exemplified by the survivor’s complete self-sufficiency: she is safe, strong mentally and emotionally, has a support system, and she is exercising self-will on a daily basis. She is making her own fully-informed decisions. There are no longer any outstanding legal issues that need to be addressed. For example, she has her lawful permanent resident status and is on her way toward naturalizing, she is employed and has permanent housing, and she has healthy relationships with other people. Example: Andy greeted the men and women and gave them their name tags. He walked some of the people to their tables and answered questions about when the program was going to start. When most of the benefit patrons were seated, the lights flashed on and off and Andy took his place by the stage. He was helping with the speakers and microphones on the stage tonight at the fundraiser for the shelter where he and his dad had stayed for those first few weeks after he had escaped from his traffickers, but he had wanted to volunteer and do something to help out this group of people who were like his own family now. He couldn’t take the time off from his full-time job during the daytime but his wife and kids understood that when he could, he donated his time and his expertise as a sound technician to the shelter for events like these.

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Example: When Bayarmaa’s husband Sukh came home that day from his job training classes, he was excited and couldn’t stop talking about another man he met there named Bataar. It wasn’t often that you met other Mongolians in the city. Sukh had only recently come over from Mongolia on a derivative T-visa to join Bayarmaa in the United States, and although he wouldn’t admit it, when she went to work, she knew he was lonely and felt useless. He didn’t speak English well yet, and he didn’t have any family here. Sukh told Bayarmaa that Bataar was really nervous because he didn’t know where he was going to live, and that he was facing problems from his employer, whom he ran away from. This triggered Bayarmaa’s own memories of escaping from her employer with the help of a kind neighbor about four years ago. Bayarmaa knew from the case manager that she still kept in touch with that although she could stay in the domestic violence shelter, that men who were in situations like hers didn’t have many options. Bayarmaa and Sukh ended up offering Bataar to sleep on their couch until Bataar’s case manager could find him temporary housing. It turns out coincidentally that Bataar’s case manager was Bayarmaa’s case manager.

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CHAPTER 5 PARALLEL LEGAL AND NON-LEGAL PROCEEDINGS AND THEIR IMPACT ON YOUR CASE

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This chapter includes: § 5.1 § 5.2 § 5.3 § 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10

Immigration Track.............................................................................................. 5-1 Criminal Track: Overview.................................................................................. 5-5 Criminal Track: Protecting Crime Victims ........................................................ 5-8 Criminal Track: Sentencing and Victim Impact Statements ............................ 5-16 Civil Track: Overview ...................................................................................... 5-17 Defense against Discovery ............................................................................... 5-25 Restitution ........................................................................................................ 5-32 Settlement Agreements..................................................................................... 5-37 Structuring Damages with Public Benefits and Taxes ..................................... 5-41 Non-Legal Survivor Services ........................................................................... 5-44

Human trafficking cases often have multiple layers of legal and non-legal proceedings taking place concurrently or consecutively, with some interplay between the different layers. While no single advocate, legal or non-legal, can or should expect to assist the survivor with every single issue, it is imperative that you are aware of and understand the parallel tracks because of this interconnection between criminal, immigration, civil, and non-legal victim services. Even if you initially envision that your involvement in the case will be limited to one track, you will likely end up assisting the client in more than one legal proceeding. See Appendix C: Parallel Processes Chart.

§ 5.1 Immigration Track As noted earlier in this handbook, we will review the most common form of immigration relief for trafficked persons, but advocates are strongly encouraged to refer to the excellent resources that already exist that provide detailed instructions on the various avenues of immigration relief such as VAWA, political asylum, Special Immigrant Juvenile Status, etc., that may be best applicable to the survivor’s situation.1

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A list of some of these legal resources is included in this handbook in the appendix.

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As a result of the nature of the international trade in human beings, victims of human trafficking often have issues with their immigration status. The most frequently seen issues include: some form of illegal entry into the United States, whether it is “entry without inspection” or entering with fraudulent documents; and entering the United States legally but then

overstaying the authorized period of stay, thereby becoming “unlawfully present”2 in the United States. It is important to determine your client’s immigration status because her status can impact her vulnerability to being placed into removal proceedings if her immigration relief application is denied or she is otherwise brought to the attention of immigration authorities and because the validity of her status can impede her eligibility for immigration relief and benefits, including adjustment of status in the future. Additionally, a client’s immigration status has usually been a focal point in the client’s trafficking scenario and held against them. For the clients, until they feel like they are “deserving” of protection of the laws in the country they currently reside in, they cannot feel a sense of peace or safety. Many of the specific concerns regarding immigration relief can be found throughout this manual, particularly in Chapters 10 and 11. The T Visa: An Overview The most common form of immigration relief is the T visa. The T visa was established by the Trafficking Victims Protection Act of 2000 (TVPA)3 and reauthorized by the Trafficking Victims Protection Reauthorization Act (TVPRA) of 20034 and 20055 as well as most recently by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.6 The visa classification provides immigration relief to foreign nationals who are deemed to be victims of a severe form of human trafficking and were trafficked in the United States. The T visa is a nonimmigrant visa that is valid for a duration of four years (can be extended to four or more years if necessary for criminal investigation or prosecution) and enables the visa holder to work and live in the United States lawfully during that time. The T visa holder (T-1) is also eligible to apply for derivative T visa classification for his or her eligible family members, such as a spouse (T-2) or child (T-3) or, if the victim is under 21 years old, parents (T-4), siblings (T-5), or adult or minor child of a derivative beneficiary of a T-1 (T-6).7 See Appendix NN: Federal Register regarding T-6 visas. New policies also allow for adult T visa applicants to apply for their parents and siblings who are unmarried and under 21 years of age for derivative T visa status if they can demonstrate with the help of law enforcement that their family members face retaliation for reporting the crime. When the criminal investigation into the trafficking situation is complete or ninety days before the conclusion of three years in T visa status, the T visa holder is eligible to apply for adjustment of status to obtain her lawful permanent resident status.8



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Note: Trafficking survivors are not considered “unlawfully present” in the United States if they can demonstrate that the severe form of human trafficking was, at minimum, one central reason for the unlawful presence, see 8 USC § 1182(a)(9)(B)(iii)(V) (2006). 3 Pub. L. No. 106-386 Division A, 114 Stat. 1464 (2000) (TVPA). 4 Pub. L. No. 108-193 (TVPRA 2003). 5 Pub. L. No. 109-164 (TVPRA 2005). 6 Pub. L. No. 110-457 (TVPRA 2008). 7 See Federal Register / Vol. 78, No. 222 / Monday, November 18, 2013, www.gpo.gov/fdsys/pkg/FR2013-11-18/pdf/2013-27303.pdf. 8 In Chapter 11 we will review the options for immigration relief and have included sample T visa applications and related documents as examples. These are not meant to be templates for practitioners but only as examples of the types of immigration documents that may need to be filed in any particular international trafficking case.

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The other form of immigration relief that was established by the TVPA and TVPRA is a remedy called “continued presence.”9 Continued presence is not a visa and does not convey any immigration status or benefit apart from legalizing the individual’s continued physical presence in the United States. It can take the form of deferred action, parole, stay of a final removal order, or others. In practical terms, continued presence or, as it is commonly referred to, “CP,” is issued for up to one year at a time and can be only be granted and renewed at the discretion of law enforcement.

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Once CP has been granted, the grant triggers the issuance of a certification letter from the federal Office for Refugee Resettlement (ORR). The certification letter certifies that the individual has been recognized to be a victim of a severe form of human trafficking and entitles the individual to apply for public benefits or a Match-Grant program.10 The grant of CP also makes the individual eligible for an employment authorization document (also known as a “work permit”). Only law enforcement agencies can submit a request for an individual’s continued presence and adjudication of these requests is performed by the U.S. Citizenship and Immigration Services (CIS), Vermont Service Center, T Visa Unit. The federal trafficking statute defines severe forms of human trafficking as: “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;” or “The recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act where such act is induced by force, fraud, or coercion, or where the person induced to perform such act has not attained 18 years of age.”11 To establish eligibility for the T visa, the individual must show that he or she:    

Is or has been a victim of a severe form of human trafficking; Is physically present in the United States due to trafficking; Has complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking in persons (if they are over the age of 18; those under 18 do not need to meet this requirement); and Would suffer extreme hardship involving unusual and severe harm if removed from the United States.12

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TVPA 107(C)(3) “Federal law enforcement officials may permit an alien individual’s continued presence in the United States, if, after an assessment, it is determined that such individual is a victim of a severe form of trafficking and a potential witness to such trafficking in order to effectuate prosecution of those responsible.…” See also 28 CFR § 1100.35. 10 The second route to obtaining a certification letter is by filing a successful T visa application. If the T visa application is approved by CIS, the approval triggers the issuance of the certification letter with its attendant benefits. 11 22 USC § 7102.

The U Visa: An Overview Another option for immigration relief for human trafficking survivors is the U visa. The U visa was also established by the Trafficking Victims Protection Act of 2000 (TVPA)13 and reauthorized by the Trafficking Victims Protection Reauthorization Act (TVPRA) of 200314 and 2005.15 The visa classification provides immigration relief to foreign nationals who are deemed to be victims of one or more of the crimes listed in the Immigration and Nationality Act (INA), including human trafficking, peonage, slavery, and kidnapping. The U visa is also a nonimmigrant visa that is valid for a duration of four years and enables the visa holder to work and live in the United States lawfully during that time. The U visa holder is also eligible to apply for derivative U visa classification for his or her eligible family members, such as a spouse or child or, if the victim is under 21, parents and siblings as well. Upon of three years in U nonimmigrant status, the U visa holder is eligible to apply for adjustment of status to obtain her lawful permanent resident status. To establish eligibility for the U visa, the individual must show that he or she:    

Has been the victim of one or more of the crimes listed in INA § 101(a)(15)(U) in the United States or that violates U.S. law; Has knowledge of that criminal activity (or if under 16, a parent, guardian or next friend has knowledge of the crime); Has been, is being or is willing to be helpful to law enforcement in the investigation and/or prosecution of that criminal activity (if under 16, a parent, guardian or next friend has been, is being or is willing to be helpful); and Has suffered substantial physical or mental abuse as a result of being a victim of the criminal activity.16

In the immigration track, some of your major considerations will be:    

Your client’s wish to remain in the United States permanently—or not—since her desire to return to her home country instead can mean the end to a major piece of most trafficking cases; Assessing the most viable option(s) for immigration relief for your client based on her individual circumstances and the T visa may not be the best choice; Whether or not your client is in removal proceedings or has a final removal order since that implicates the need for representation in immigration court proceedings and possible obstacles to immigration relief; Timing the submission of the T and/or U visa application if civil or criminal proceedings are also underway since these parallel legal proceedings can mean possible discovery

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TVPA 107(c), 8 CFR § 214.11(b). Pub. L. No. 106-386 Division A, 114 Stat. 1464 (2000) (TVPA). 14 Pub. L. No. 108-193 (TVPRA 2003). 15 Pub. L. No. 109-164 (TVPRA 2005). 16 TVPA 107(c), 8 CFR § 214.11(b).

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concerns for the client’s T or U visa application and statements made in that application; and Working with law enforcement to obtain CP and/or a written endorsement for inclusion in the T and/or U visa application since CP and its accompanying benefits can be processed quickly, sometimes in a matter of days or weeks; also a written endorsement for the T visa application can help its likelihood of success; whereas for a U visa case, a written certification from law enforcement is required.

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To help advance your client’s interests in the immigration context, a thorough discussion about all her different relief options must take place. She should be made aware of the eligibility requirements, documentary/evidentiary support necessary, costs and fees, and the pros and cons of each option. For example, if the trafficked person is a survivor of servile marriage, she may wish to pursue VAWA with its absence of any requirement to cooperate with law enforcement and its relatively well-understood application procedures and best practices rather than apply for a T visa. In the situation where the trafficked person may have been ordered removed at the border (“expedited removal”), you may choose to file for a U visa, since the grant of a U visa will automatically terminate an administrative order of removal. You should seek out legal resources and expertise overall for the most up to date legal information, filing procedures and practices since the T and U visa area, and immigration generally, can change rapidly and unexpectedly. In addition, you should consider associating with attorneys with specific expertise in the area of immigration relief that your client wishes to pursue if it is not an area that you feel comfortable, such as asylum or removal defense or Special Immigrant Juvenile Status since even small errors in timing or supporting documentation can be disastrous to the application’s chances for approval and result in serious immigration consequences for your client and her family. [Note: For legal practitioners comfortable with filing for U visas on behalf of survivors of crimes, such as domestic violence, the protocols for handling cases involving human trafficking are distinct, so before proceeding, please make sure you understand and are comfortable with these protocols. These protocols are discussed throughout this handbook.]

§ 5.2 Criminal Track: Overview

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There are two major ways that the criminal justice system can come into play in a trafficking case. The first is when the survivor has been involved in some form of criminal activity, whether voluntary or involuntary. As a part of the dynamic in a trafficking situation, the victim may have committed unlawful activities at some point during the trafficking scheme, whether at the trafficker’s command, or under duress, or voluntarily in the belief that there was little or no alternative. The second situation arises when law enforcement is aware of the trafficking situation and the survivor must potentially play a role as a victim-witness during a criminal investigation and any criminal proceedings that may follow. In this case, the survivor needs to be aware of the expectations for her participation and cooperation that law enforcement and the government will have, from providing hours or even days of interviews, to being deposed by defense counsel, to testifying at a criminal trial in the presence of her trafficker(s).

As we will discuss later in this handbook, the survivor who does become a witness in a criminal prosecution may need legal representation during the prosecution to protect her interests as a victim-witness, such as her right to privacy and to protect her from potential re-victimizing tactics by defense counsel. In both scenarios, the survivor must be interviewed carefully to assess her possible vulnerability to any criminal liability, including unearthing any past criminal history that she may have incurred related or unrelated to the trafficking situation. This is critical if she wishes to successfully pursue lawful status in the United States, and/or bring her trafficking situation to the attention of law enforcement, if law enforcement is not already aware of the human trafficking situation. Example: Amanda was very nervous because her lawyer had told her that her abuser would be in court and that she would have to see him there in order to get her protective order to stop his scary phone calls at her home and her workplace. She saw him in the courtroom, surrounded by his family, all of them shooting her ugly stares and muttering to each other, making her feel utterly alone and nearly persuading her to run out of the courtroom and to give up on this protection. But even as she stood there, one foot inside the courtroom and one foot in the hallway, her attorney approached her with her case manager, both of them with reassuring smiles and fierce hugs. But her momentary feeling of comfort would soon disappear. It wasn’t talking about how he had forced her to work in his home and in his club for no pay, threatening her with jail and deportation, pinching her upper arms and her thighs when no one else was around so no one would see the bruises. It wasn’t even talking about how he’d raped her when his wife and kids had been out of the country visiting family. It was when her trafficker had gotten on the stand and accused her of being his willing mistress and how he’d bailed her out all the times that she’d been arrested by the police for prostitution. She’s been too ashamed to tell her attorney and now it was all coming out anyway.

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The existence of the criminal track can impact your case in a variety of ways. It can affect the survivor’s eligibility for different forms of immigration relief as well as impact the likelihood of a successful outcome. The existence of the criminal aspect can be a strong factor in the survivor’s decision-making process regarding whether or not she wishes to bring her trafficking situation to the attention of law enforcement in the first place. Example: Kim told her legal representative that her traffickers drew up papers of partnership making her part business partner of a spa. She was told she was the boss, but when the other women left the spa she was forced to do all of the work, including cleaning, laundry, and sex work. She was told by her traffickers that sex work was part of the services customers expected in the United States. She was forced to sleep on the premises so she could open early and close late. Kim was told to collect the money from the customers and to pay bills. But Kim had no management control over the business. Legally, her “business partner” was the owner, and made decisions about the business. Kim’s legal representative worried that reporting Kim’s trafficking to law enforcement would put Kim at risk of being criminally charged. Thus, her legal representative spoke with Kim about other possible immigration relief which would not require her reporting her trafficking to law enforcement.

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The possibility of criminal proceedings can increase dramatically the amount of expertise and work that is needed to successfully represent the survivor’s interests in obtaining immigration relief, in protecting her from criminal liability, and in asserting her rights as a victim-witness. The criminal piece can also affect the timing of the submission of an application for immigration relief in light of potential discovery concerns. More importantly, the criminal process and your client’s involvement in that process can risk re-traumatization to the survivor.

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In addition, a conviction of a trafficker can result in restitution for your client. The role of victim restitution in the criminal justice system has changed greatly in the last twenty years in favor of exercising crime victims’ rights. Most of the time, restitution during a criminal case will be the fastest and easiest way to obtain monetary relief for your client. The TVPA enacted 18 USCS § 1593, which requires that the court order convicted criminals to pay mandatory restitution in the “full amount of the victim’s losses”17 and “shall include the greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act (29 USC 201, et seq.)” This is typically done during plea negotiations and the court’s sentencing of the criminal. Another statute you may rely on to help your client obtain restitution is the Mandatory Victim Restitution Act of 1996, which removed judicial discretion from the restitution process by mandating that restitution be ordered in the full amount of victims’ losses without regard to the defendants’ financial circumstances. Therefore, in addressing your client’s interests in the context of this criminal layer, you will need to pay special attention to the following:      

Interviewing your client with an eye towards any criminal activity that she may have participated in at any time Having your client obtain the relevant criminal record requests from all the locations where she has resided since entering the United States since she may not herself be aware of her own record Recruiting the assistance of a criminal defense attorney to help evaluate your client’s risk of exposure to any criminal liability and/or help salvage your client’s eligibility for relief if she does in fact have a criminal record that must be addressed Discussing protection from prosecution with prosecutors, such as immunity or proffer agreements, before your client divulges any information Securing representation for your client during a criminal prosecution to protect your client’s rights as a victim-witness pursuant to the federal Crime Victims Rights Act and pertinent state victim protection provisions, such as rape shield laws Discussing the scope of your services with your team, your own agency or organization, and your client so that resources and expectations can be best managed

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The term “full amount of the victim’s losses” has the same meaning as provided in 18 USC § 2259(b)(3), including: medical services relating to physical, psychiatric, or psychological care; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing, and child care expenses; lost income; attorneys’ fees, as well as other costs incurred; and any other losses suffered by the victim as a proximate result of the offense.

  

Understanding whether or not the criminal activity occurred in the context of the trafficking situation Understanding the risks and consulting an immigration attorney specializing in deportation work of the effect any guilty plea or conviction will have on the client’s status, and making sure the client understands these consequences Ensuring that the client’s right to mandatory restitution is considered and protected

The fact that criminal proceedings may be triggered during the progress of your trafficking case can also impact your work and your agency overall. Regardless of the status of your relationships with various law enforcement, government agencies, and other communitybased organizations, many of these relationships can be impacted by your involvement in a human trafficking case. The reality that there must be a collaborative and cooperative working relationship among diverse parties may result in your alliance with some entities that are not traditional allies: an immigrant rights’ agency must now work hand-in-hand with federal immigration authorities tasked with the apprehension and detention of undocumented individuals; a group whose mission is to uncover police misconduct is now part of an anti-trafficking team that includes the police and participates on law enforcement raids of potential human trafficking sites; etc. On the other hand, your traditional allies and long-term colleagues may object to your collaborative work with “new” partners who do not share your agency’s same politics or agenda and may distrust the increase in closeness that you have with these new partners. While there is no easy answer to the question of how to smoothly navigate these new waters, one strategy that has been helpful is to be very clear about you and your agency’s role in a trafficking case to both new and more familiar partners—your objective to serve your client in the most effective manner possible and your role as an advocate for the best interests of your client. This consistent clarity can help manage the expectations of all the parties involved. Last but not least, again, the reality in every human trafficking case is that there has been some form of criminal action perpetrated against your client. There is an individual, or group of individuals, who has engaged in illegal activity and who may risk imprisonment or other punishment if this situation comes to light. Therefore, you have to take this reality into consideration when it comes to preparing yourself and your colleagues to assist a trafficked person. Safety considerations should be assessed for yourself, your agency, and your client as the case progresses.

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§ 5.3 Criminal Track: Protecting Crime Victims Unfortunately, it is too often the case that a trafficked person who participates as a witness in a criminal trial is attacked by the defendant all over again and the survivor is retraumatized through the criminal process: private and personal information can be sought by the defendant as part of the defense strategy to undermine the testimony of the witness. The defendant may try to paint the trafficking survivor in unsympathetic colors as possible, to intimidate the survivor by an aggressive attack on her credibility, her memory, her choices, her overall character and her privacy as well as the privacy of the survivor’s family or loved ones,

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and more. Especially in cases where sexual assault or rape is involved, this kind of harassment is routine and must be anticipated and blocked as much as possible for the sake of the survivor’s well-being. Having at least a minimal understanding of the laws that could help protect the survivor from such assaults is crucial in order to ensure that the survivor is not re-victimized even after escaping the trafficking situation itself.

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It is not a new situation for a crime victim to be blamed in part or in total for the crime perpetrated against her. For example, in the 1970’s, states began to enact rape shield laws in order to help protect victims of rape because rape survivors were being regularly re-victimized during court proceedings by having their sexual histories exposed and examined. In the context of human trafficking survivors, the “blame the victim” tactic is an often-used stratagem by traffickers, especially in sex trafficking cases. If the survivor can be effectively portrayed as an unchaste individual who has had an active sexual past, it can undermine the survivor’s credibility, negatively affect the prosecutor’s desire and ability to fully prosecute the trafficker, among other impacts. In California, the rape shield law is best characterized as a law that generally protects rape survivors from having their sexual histories used in court proceedings but the amount of protection depends on the purpose for which the information is sought. In other words, if the past behavior is being used to prove consent, the behavior is typically barred. But the sexual history information can be used to attack the survivor’s credibility. Advocates have reported that trafficking survivors are being increasingly scrutinized in court or administrative settings and subject to character attacks, such as their past sexual behaviors (like survivors of sexual assault and rape have been subjected to)We have also seen trafficking survivors being attacked for seeking or accessing immigration relief and other relief provided by federal and state laws. This strategy hurts trafficked persons in several ways: 1) it can dissuade prosecutors and other law enforcement from providing assistance to survivors because they fear that any aid offered will have a deleterious effect on the prosecution’s case; 2) it can dissuade a trafficking survivor from reporting and/or cooperating with a case or from seeking the sorely-needed relief; and 3) it re-traumatizes the survivor during the already stressful proceedings by forcing the survivor to defend her character or her past choices in public settings. Moreover, in many trafficking cases, there is a lack of objective evidence of the criminal activity and the crime victim may be the primary or only first-hand witness. Therefore, the survivor’s credibility can be a critical factor in the success or failure of a criminal case against the trafficker(s). Protecting the trafficked person from attacks on his or her credibility is becoming more and more important. Laws that aim to protect crime victims and their families can be very useful tools to aid advocates who are attempting to do so.

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Not every one of your trafficking cases will be accompanied by a criminal proceeding. There may be a criminal investigation that is initiated and then closed for various reasons, such as a lack of evidence. However, when the trafficking survivor is a participant in a criminal prosecution of the trafficker(s), you should be aware of the survivor’s specific and substantive rights as a crime victim under both state law and federal law in order to protect their best interests. Participating as a victim-witness in a criminal proceeding can be extremely stressful and destabilizing and can be even more so to a trafficked person who may have been abused and

terrorized horribly already by the trafficker. It is paramount that any trafficking advocate takes whatever affirmative measures are available to protect the survivor from further abuse at trial. In this section, we will provide an overview of the major pieces of state and federal legislation with which advocates should be familiar. We will also review defensive and preemptive measures that legal advocates can use in legal proceedings to defend against attempts by traffickers to extract information from trafficking survivors’ advocates. Sources of technical assistance will also be included for advocates who want to do additional research or who need aid with cases of their own. Please note that while this section focuses on the Crime Victims’ Rights Act and California’s Marsy’s Law, there are a number of other laws that advocates may find to be helpful resources: Crime Control Act of 1990, Child Victims’ Rights (18 USC 403 § 3509), Mandatory Restitution to Victims of Certain Crimes (18 USC § 3663A (a)(2)), Victims’ Rights Clarification Act of 1997 (18 USC § 3510), and Victims of Crime Act of 1984 (42 USC § 10601). Crime Victims’ Rights Act (CVRA) The primary federal legislation that advocates should review is the Crime Victims’ Rights Act of 2004 (CVRA). While it was not the first federal law passed pertaining to crime victims’ rights, the CVRA is considered to be a seminal piece of legislation because it was the first to establish substantive rights for crime victims that could be enforced in federal court. Crime victims would henceforth have the legal standing to assert substantive and procedural rights and play an active and significant role in the criminal proceedings related to their victimization. The work of the crime victims’ rights movement was critical in the passage of the CVRA—the families of crime victims especially came together to advocate for legislation that would address the secondary trauma that victims and their families were suffering during criminal proceedings because of the lack of procedural and substantive rights. The Crime Victims’ Rights Act was named for Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn; who were murder victims whose families were denied some or all of the rights granted by the Act in the course of their cases. For example, Stephanie Roper’s parents were denied the right to attend the criminal proceedings against the two men who had murdered their daughter and were denied the right to give a victim impact statement to the court. See Kyle, et. al., On the Wings of Their Angels, LEWIS & CLARK L.R., Volume 9, 582, which provides details regarding the tragedies faced by these families and their loved ones. The CVRA established eight substantive rights for federal crime survivors:  

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The right to be reasonably protected from the accused. The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused. The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

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    

The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. The reasonable right to confer with the attorney for the Government in the case. The right to full and timely restitution as provided in law. The right to proceedings free from unreasonable delay. The right to be treated with fairness and with respect for the victim’s dignity and privacy.

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The law imbues officers and employees of the Department of Justice (DOJ), including federal prosecutors, investigative agents, victim-witness staffers, and judicial officers, with the responsibility to inform crime victims of their rights under the CVRA as well as to make best efforts to see that those rights are enforced. Crime victims are also able to independently assert their rights under the CVRA by filing a motion for relief in district court regarding the violation or via a complaint procedure established by the U.S. Department of Justice.18 See the website for the Executive Office for U.S. Attorneys at www.justice.gov/criminal/vns/about/complaintform.html for details on the complaint procedures. If relief is not awarded by the district court, crime victims can seek a writ of mandamus (an order by a higher court to a lower court to perform a specific action) in the federal court of appeals. If the writ is successful, the appellate court can direct the district court to award the relief sought. Finally, the CVRA also directed the DOJ to establish a way for crime victims to alert those with the responsibility of enforcing the CVRA regarding DOJ employees who have failed to comply with the CVRA. Mandatory training and/or punitive measures can be imposed on any DOJ employee who is found in violation. California Victims’ Rights Laws: Marsy’s Law In California, there are a number of state laws designed to fully protect the rights of victims of crimes. One of the most noteworthy developments was the Victims’ Bill of Rights Act of 2008, better known as Marsy’s Law. The law was promulgated after Marsalee (Marsy) Nicholas, a student at the University of California, Santa Barbara was stalked and killed by her ex-boyfriend in 1983. Only days after her murder, Marsy’s brother and her mother walked into a grocery store after visiting Marsy’s grave, only to be confronted by the ex-boyfriend. No notice had been given to them about his release pending trial. The tragedy suffered by Marsy and her family inspired the passage of Marsy’s Law to establish an expanded list of substantive rights for crime victims on a state level, akin to the CVRA, that would hopefully prevent any other family from ever suffering through the same horrific experience. Marsy’s Law amended the California constitution so that Article 1, Chapter 28, section (b) now provides the following enumerated rights: 

To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.

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See the website for the Executive Office for U.S. Attorneys at www.justice.gov/usao/eousa/vr/cvra for details on the complaint procedures.

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  

 

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    

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To be reasonably protected from the defendant and persons acting on behalf of the defendant. To have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant. To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law. To refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents. To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant, and, upon request, to be notified of and informed before any pretrial disposition of the case. To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings. To be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue. To a speedy trial and a prompt and final conclusion of the case and any related postjudgment proceedings. To provide information to a probation department official conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant. To receive, upon request, the pre-sentence report when available to the defendant, except for those portions made confidential by law. To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody. To restitution. o It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. o Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss. o All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim.

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   

To the prompt return of property when no longer needed as evidence. To be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified, upon request, of the parole or other release of the offender. To have the safety of the victim, the victim’s family, and the general public considered before any parole or other post-judgment release decision is made. To be informed of the rights enumerated

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In the legislative history of Marsy’s Law, the intent of the law was very clear: to establish rights for crime victims and witnesses that would balance the protections afforded to criminal defendants; the duty of law enforcement agencies, prosecutors, and judges would be to vigorously honor and protect those rights and the victim/witness would be able to enforce these rights independent of the prosecutor or law enforcement. Marsy’s Law changed California law in significant ways. Now, the crime victim has the right to address the court at all stages of criminal proceedings and not simply after a conviction or plea with a victim impact statement. Victims are also entitled to be present in the courtroom during the entirety of the proceedings, even if they are to be witnesses in the proceedings. Mandatory restitution for crime victims regardless of the conviction or plea reached was also a significant expansion of victim rights pursuant to Marsy’s Law. All crime victims in California are supposed to be provided with information regarding their rights under Marsy’s Law and how to avail themselves of those rights.19 The prosecutor, the prosecutor’s representative, the crime victim, or the crime victim’s attorney, can enforce these rights by filing the proper motion(s) in any trial or appellate court and the court is charged to act promptly on any such motion.20 Other methods that can be used to protect the witness at trial can include: asking the court to allow a child survivor of trafficking to testify in a setting other than in open court, such as through closed-circuit TV; asking the court to close the courtroom; allowing the witness to sit and testify without having to face the defendant face-on; asking the court to allow a counselor or advocate to stand near to the testifying crime victim as support; making sure that the prosecutor or the survivor’s representative makes appropriate objections if the defense attorney violates the survivor’s rights by treating them disrespectfully. Remember that Marsy’s Law and the CVRA expressly order that prosecutors and judges in a criminal proceeding make their best effort to see that that crime victims are notified of, and accorded, their substantive rights and that this places a responsibility on these officers of the court to ensure that the survivor’s rights are being respected.21

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See “Marsy’s Card” available online at http://ag.ca.gov/victimservices/marsy.php. The Card is currently available in English, Armenian, Cambodian, Chinese, Hindi, Hmong, Italian, Japanese, Korean, Polish, Portuguese (Brazilian), Punjabi, Romanian, Russian, Tagalog, Vietnamese, Arabic, Farsi, and Pashto. 20 See Article 1 § 28(c)(1). 21 Please note ongoing changes in Marsy’s Law. The United States District Court for the Eastern District of California ruled in Gilman v. Brown, ruled on 2.27.2014 that the provision of California’s Proposition 9 (commonly referred to as “Marsy's Law”) that allows the Board of Parole Hearings to increase the length of

Practical Resources The substantive rights of the CVRA and Marsy’s Law sound self-explanatory but the questions that arise for most advocates are: how and when does an advocate actually apply any of them to any specific situation? What does “reasonable right to confer with the attorney” mean and who makes the determination regarding reasonableness? What is the definition of “fair treatment” and how does one measure if the survivor is being treated with “respect for [his or her] dignity and privacy”? These are open questions and the courts are interpreting and applying both the CVRA and the provisions of Marsy’s Law in somewhat inconsistent ways. But even without established legal precedents to rely upon, the advocate can consult with her client about the existence of the rights created by these laws and counsel the client about the process of asserting these rights, including the costs and benefits of taking on these issues. We advocate that the first step is to familiarize yourself with these rights; the second step is to assert these rights directly with the prosecutor and with the presiding judge; the third step is to be prepared to draft and submit written motions that support your client’s rights and requests for relief from the court. We cannot stress enough that advocates need to prepare for trafficking cases by either a) developing the expertise in-house or b) recruiting pro bono counsel who are ready to assist the survivor with written and verbal arguments to the court, with the preparation and submission of writs of mandamus, as well as outreach and advocacy to the prosecution to enforce these rights long before challenges to the rights of survivors arise. For example, in one case involving a sex trafficking situation with a group of female survivors who were going to testify against the defendants at trial, one of the defense’s first acts was to try to introduce information regarding the survivors’ sexual histories and past behaviors during the trial. The defendant’s argument was that the women had been prostitutes before having been allegedly trafficked and forced into prostitution upon arrival in the United States and therefore no “forced” prostitution had taken place. In other words, since they were already prostitutes previously, they simply carried on with this choice after being transported to the United States and no force was needed or used. This kind of “blame the victim” strategy is not unusual. The survivors and their advocates were horrified by the idea and possibility that their private lives would be ripped open and judged. Moreover, some survivors had not shared their trafficking experiences with their family members or close friends and were terrified at the idea that all of this would be revealed without their having any control over the process. Our response was to file a motion to bar the defense from introducing any of this information under the CVRA, citing the crime victim’s right to be treated with respect for their dignity and privacy. In addition, a different motion was filed to protect the full names of the

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time between parole hearings, as applied to individuals sentenced to life terms and whose crimes were committed prior to November 2, 2008, are prohibited under the Ex Post Facto clause of the U.S. Constitution. If the state fails to appeal by April, the order becomes effective. All other provisions of Marsy's Law remain in effect. See Prison Law Office, last visited 3/18/2014, at www.prisonlaw.com/event s.php. Gilman v. Brown Order is accessible at: www.prisonlaw.com/pdfs/GilmanOrder14-02-28.pdf.

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survivors from being used in any court filings or proceedings but instead for the survivors’ privacy to be protected by having their initials or pseudonyms used. Ultimately, the court allowed the survivors’ initials to be used and barred the defense from introducing past sexual behaviors at trial. Moreover, the court ordered that all court documents be filed under seal as well. This outcome reassured the survivors and gave them a sense that their interests were being looked after by not just their advocates, but by the court as well. It allowed the survivors to enter the courtroom with strength and purpose and not overwhelming fear and shame that surely must accompany such personal exposure.

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In another example, a local prosecutor reached an agreement with a defendant’s attorney to continue the criminal proceedings for an additional six months; the case had already been pending for nearly two years. While the initial delay had resulted from the defendant’s request for more time to prepare a defense, the additional delay was a result of the prosecutor’s request for more time to attend to personal matters and the lack of available court dates as soon as the prosecutor was able to return to continue with the case. The victim’s father was in the courtroom and asked to be heard by the judge. He protested that the family needed and wanted closure and had been traveling at their own expense to attend the different court proceedings over the past year. He asserted that his family had the right under state law to “proceedings free from unreasonable delay.” The judge ultimately agreed with the family and directed the prosecutor to arrange the scheduling and staffing of the case so that it could move forward without the need for a half year’s delay. The examples above serve to illustrate the reasons why we assert that the prosecution’s interests and the crime victim’s interests may not always align. That fact alone compels advocates to consider actively participating in the criminal proceedings in the best interest of their client, the survivor. For example, the prosecution may not want the survivor to assert her right to be heard during sentencing if the survivor has made her opinion known that she disagrees with the plea agreement, including the sentence that has been agreed upon between the government and the accused. Alternatively, the prosecution may not believe that revelation of the survivor’s sexual past is necessarily detrimental on the government’s case against the accused but the survivor desperately wants to avoid revealing such intimate and private information. There are many other situations that serve to illustrate the reasons why the enforcement of crime victims’ rights cannot be simply entrusted wholesale to the government—the advocate needs to be aware of the rights that the survivor has and be prepared to independently enforce those rights.

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The advocate is not alone in this struggle. There are resources that exist that can help with more information about how to use the CVRA and other federal and state laws as well as with motion templates and examples of useful arguments successfully utilized in other cases. One such resource is the National Crime Victim Law Institute (NCVLI). The NCVLI was first conceived in 1997 by Professor Doug Beloof and was established in 1998 as a national non-profit legal advocacy organization whose mission is to actively promote balance and fairness in the justice system through crime victim centered legal advocacy, education, and resource sharing. The NCVLI offers professional resources, such as a victim law library, trainings, a searchable database of information such as cases and pleadings, as well as technical assistance such as legal

research and writing and the filing of amicus briefs. NCVLI is associated as well with the National Alliance of Victims’ Rights Attorneys (NAVRA), which has a website that allows its members access to invaluable resources, including case summaries, pleadings, amicus briefs, and more.

§ 5.4 Criminal Track: Sentencing and Victim Impact Statements If a defendant pleads guilty or is convicted, victims have the opportunity to submit a Victim Impact Statement, in which they may explain the physical, emotional, and financial effects of the crime. Victim Impact Statements are submitted to the Court and may be used to help the Court decide what sentence the defendant should receive and whether restitution should be ordered. These statements thus have impact over the final outcome of a criminal case. If the traffickers in a case were charged or pled down to less severe crimes such as alien harboring or visa fraud instead of crimes with stronger sentencing and restitution attachments, such as forced labor, the Victim Impact Statement becomes more important than ever to stress the great effect of the crime on the victim. After all, many convictions do not translate to the severity of the crime, and so the Victim Impact Statement can express this gap. Knowing that although the traffickers are pleading guilty to alien harboring but were initially investigated and prosecuted because of underlying forced labor crimes and concerns may convince the judge to order a longer sentence and a greater restitution amount for the victim.

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In federal court, Federal Rules of Criminal Procedure Rule 32 relates to sentencing and judgment, and structures the ways in which victims can express the crime’s impact to the court. Rule 32(b) requires that the probation officer submit a pre-sentence report to the court. This presentence reports consists of information about the defendant, such as their prior criminal history and other considerations. It also contains information about the victim and the financial, social, psychological, and medical impact of the crime on the victim. A Victim Impact Statement should be submitted in a timely fashion to allow the probation officer ample time to consider its information when writing the pre-sentence report. This Victim Impact Statement may also include information about restitution, which will be described in further detail below. The defendants are given a copy to read as well. Victim Impact Statements should concentrate on the effect of the crime on your client, not just merely restating facts of a case. How much the judge knows about the facts of the case may depend on how far along the case proceeded. For example, if the defendants pled guilty early in the case, the judge may know very little factual information about what happened to the victim. If the defendants pled guilty after a trial, the judge will have heard many detailed facts about what happened to the victim. Use your judgment to determine how much the facts may illustrate the impact on your client and how necessary it is to include them. For example, facts about physical injuries inflicted upon your client and how they were inflicted by the traffickers may be worth reiterating to stress the physical and emotional impact on the victim. However, the more facts that are introduced in the Victim Impact Statement that were not already introduced by the prosecutor, the more likely the defendants may be able to challenge.

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Sometimes the U.S. Attorney’s Office provides a form that you can use to help your clients answer these questions. If this form for whatever reason is not provided, you should request it from the Victim Witness coordinator or submit a separate letter, declaration, and supporting documents to the Victim Witness coordinator, prosecutor, or probation officer (to prepare the sentencing report). Do not submit this document directly to the judge. Only file documents with the court ex parte if the prosecutor for whatever reason refuses to forward the information. For the statement, it is best to organize the topics in a way that can be easily read, such as financial impact, physical and medical impact, and psychological and emotional impact. If your clients have a difficult time articulating the impact, it may be helpful to ask the client questions. Some examples include, “Do you have difficulty earning income today because of the effect of the crime?” Often, many trafficking survivors are traumatized by the particular work or industry they were trafficked into, and although they have terminated their situation and have immigration status, may not be qualified to work in other industries than something similar to what they were trafficked into. Other examples include asking a checklist of feelings and asking them to expand upon these feelings. Your clients may have a particularly difficult time in expressing these emotions. Examples include asking questions related to the feelings of: guilt, anger, anxiety, sadness, appetite changes, effect on sleeping habits, flashbacks, paranoia, “seeing” the trafficker “everywhere,” inexplicable aches (head, stomach, back, neck), uncontrollable physical actions, feelings of suicide and wanting to inflict pain on oneself, alteration in religious beliefs, alterations in daily activities, changes in trust of others, feelings of hopelessness, and changes in ability to relate to others (especially those from your own community and to people of other genders).

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Ultimately, the Victim Impact Statement need not to be an inexhaustive essay and book, but enough information to support why and how the victim has been affected, and why they deserve the restitution that you and the prosecutor are asking for. Information supporting restitution requests should be explained in the Victim Impact Statement. For example, if the victim developed long-term skin problems because of constant exposure and lack of protective gear in their housekeeping or domestic servitude trafficking situation, that request and nexus between the injury and restitution should be explained in the Victim Impact Statement. Once you have helped prepare the Victim Impact Statements, it is time to prepare and calculate the restitution, which is best submitted with the Victim Impact Statement. Request that everything you submit be filed under seal as to protect the victim’s identity as much as possible. Note that the defendant can file a response to the statements made in the Victim Impact Statement, so again, be careful about the level of detail of factual information the victim submits.

§ 5.5 Civil Track: Overview

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Seeking damages and other compensation for survivors is another layer of a trafficking case. Obtaining this type of financial justice for a trafficked person is a key element of any effective victim protection strategy. Success in this area can mean empowering the survivor because she can confront the trafficker safely and in an official setting, calling upon the trafficker to answer for his or her bad acts to providing the survivor with a nest egg or investment capital

for financial health for the long-term, regardless of whether or not she remains in the United States. In addition to consulting existing case examples, if you are considering this option, you should consult an excellent and free manual by Kathleen Kim and Daniel Werner titled Civil Litigation on Behalf of Victims of Human Trafficking.22 In the civil track, some of your major considerations will be:        

Does your client want to seek civil relief, and if so, for what reasons (e.g., monetary damages, justice, lack of criminal prosecution, etc.); Does your client understand the different legal processes, the purposes of each legal process, their role, and the players; What organizations are best suited to help your client seek civil relief; Strength of civil claims and concerns related to statute of limitations; The best jurisdiction to file your case (e.g., state or federal); Who all of the possible plaintiffs and defendants may be; Does the trafficker have any assets, particularly in the United States; and The timing of filing a civil suit, especially in relation to a criminal case.

Why Bring Civil Action? There are many potential benefits to bringing civil legal action. One main benefit is that the survivor as the plaintiff controls the litigation process in a civil case and makes decisions on whether or not to take civil legal against a trafficker, and also can decide when to end the case. In contrast, in a criminal case, it is the prosecutor, not the survivors (who is a victim-witness in this case), who controls the process and makes decisions about whether or not to prosecute a trafficker, plea bargains, etc. The civil track can also mean enforcing your client’s rights in other settings beyond the immigration or criminal, such as in recovering lost wages, civil protective order proceedings or in family court. In these settings, help and relief can be much more immediate and give your client a sense of power and action, of forward movement in her situation. It can also mean relieving her mind of stressors such as the fear of losing custody of her child to her trafficker or the risk of being harassed or even assaulted by an angry and dangerous former trafficker. Civil litigation will likely make greater monetary compensation available for your client in the form of restitution, compensatory, and punitive damages. In criminal cases, only restitution is available to the victim, and is not always mandated.

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There is also an argument that civil lawsuits may create deterrent effects against perpetrating trafficking on others and on the profitability of the crime, especially in cases where the defendants may be large corporations. Civil legal action may also provide a symbol for your client in their ability to access the legal system and to seek justice through their own means of purpose and control, something that may not be available to them through the criminal justice system. This control may include the client’s ability to negotiate settlements and to initiate and end their civil cases.

22

Available at www.splcenter.org/sites/default/files/legacy/pdf/static/splc_human_trafficking.pdf.

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Procedurally, civil cases have the lower standard of proof of preponderance of the evidence rather than much higher criminal standard of proof beyond a reasonable doubt. This is important because so many trafficking cases occur in secret and private where your client may be the only real witness to the abuse, criminal cases are frequently hard to bring. For other victims, the trauma from the trafficking may affect temporary loss of memory and difficulty in linear storytelling. However, in civil proceedings, it is more likely that testimony and evidence that would be inadmissible in a criminal case can be admitted to benefit your client, such as evidence of post-traumatic stress disorder, rape trauma, battered women’s syndrome, dependency, and learned helplessness. Broader discovery rules in civil proceedings may prove both more helpful and challenging for your case. Finally, there are far more civil causes of actions and claims available for your client to access than there are applicable criminal violations. Most trafficking cases are complex cases with a myriad of contract, tort, labor and employment, and other civil claims.

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Is Civil Relief Appropriate and Feasible for This Trafficking Survivor? In this track, the first thing to evaluate is whether or not your client requires separate civil relief. The second thing is to evaluate whether or not your client is suitable for civil litigation, as it may mean prolonging the legal process and putting your client through potentially grueling depositions and a trial. Some clients may not desire this option as they would prefer for all of the legal processes to end, so they can feel like they can move on with their lives. Some clients face considerable threats to their safety and retaliation for taking civil action against their employer. Their loved ones abroad may also face danger. These are considerations the client must be consulted about.

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You will also need to evaluate your client’s legal needs and determine whether you and/or your organization is the best suited to meet those needs. For example, if the client wants a civil protective order to bar her trafficker from contacting her in any way, shape, or form, and your organization does not regularly represent individuals in civil proceedings, you may want to make a good referral to an agency that focuses on this type of relief, such as a legal aid or a different nonprofit agency. Or if your client does not wish to stay in the United States and pursue immigration relief but she does want to sue her trafficker for back wages and for the injuries that the trafficker inflicted upon her, there are pro bono law firms that have the deep resources, associates and other staff, and a strong interest in taking on what can be a costly part of a trafficking case. Some of the pro bono law firms have associates and partners who are former prosecutors and are familiar with employment and labor law, which is extremely helpful. To ensure that your client’s interests are being protected even if you are not the primary advocate in this area, you may want to help your client determine the costs and fees that might accompany these services since they can vary widely. You may also want to ensure that the case manager or advocate in charge of coordinating the survivor’s social services is aware of the legal referrals that you are making to your client and that introductions are made between these disparate players so that everyone knows who is involved in the survivor’s case, what role is being played by each, and the limits or extent of communication and information that can be shared by all involved. When so many different legal processes and players are involved, the client can become easily confused about who is doing what, and for what purpose.

Sometimes your client is taking great pains to reintegrate back into their community in a healthy fashion, and their traumatizing story may interrupt this process. We have seen cases where workers are ostracized for suing their traffickers, who many people in the community deem to be upstanding individuals. In cases like this, it is worth strongly considering filing the civil complaint anonymously as Jane Doe or John Doe in the public record. This may add on to a few additional filings, but the authors have been successful in these filing in the federal courts of the District of Columbia and the Northern District of California, as well as the California Superior Courts of the counties of Santa Clara and Alameda. This protects your client’s identity and buys them time to decide when they want to reveal their identity, which can be helpful during settlement negotiations before trial and/or a criminal proceeding reveals their identity to the public. It may also protect your client from invasive media inquiries and retaliation by others in the community or connections the traffickers and their contacts. Other considerations are assessing the strength of a civil suit, such as whether or not the trafficker has significant assets to pursue, and whether or not those assets are recoverable. Having the pro bono law firm conduct asset searches can be an important first step. Overseas assets, for example, are much harder to recover, and judgments can be difficult to enforce in other countries. When and Where to Bring Civil Action Timing for a civil suit and its interaction with the criminal case is an important consideration. Under federal law (and likely under most state laws), if there is a criminal case, a civil suit will be stayed (paused) until the criminal case is complete.23 You should explain this potential consequence to your client, as it may greatly delay and lengthen the time that your client may be involved in legal processes and affect their ability to move beyond their trauma. Even so, any and all civil claims should be evaluated early on so that at least a civil suit can be filed in a timely fashion to toll the statute of limitations and keep the civil lawsuit viable. The civil complaint, like the T visa, must be written carefully with an eye towards the document and facts being used to impeach your client in a criminal and civil case. Sometimes a criminal case and a civil case can be resolved together in a global settlement. Civil attorneys may also choose to make their own calculations of the restitution owed to the client and help prepare Victim Impact Statements during the trafficker’s sentencing to be submitted for the court’s consideration. Criminal convictions of the trafficker may also ensure easier judgments in your client’s favor in a civil suit.

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Keep in mind that when you initiate civil action may also impact your client’s immigration status in potentially positive and negative ways. For example, fears of inconsistent statements in T visa declarations and in the civil complaint and the need to harmonize these documents may cause delay in one of these processes. Many trafficking survivors also may not prioritize or fear civil legal action if they have pressing immigration concerns. Especially important to note is that 8 CFR § 214.11(i)(4) states the loss of access to the U.S. courts for civil redress for act of trafficking as a factor of extreme hardship to consider in T-1 nonimmigrant

23

Under federal law, see 18 USC § 1595(b)(1).

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status eligibility. Thus, if your client intends or has filed any civil action, this should be mentioned in your client’s T-1 nonimmigrant visa application. Additionally, as of March 2011, CIS will permit A-3 and/or G-5 visas holders who are victims of human trafficking, sexual exploitation, and others who have filed civil action against their employers to apply for deferred action and work authorization while their civil case is pending. A-3 and G-5 visas holders are nonimmigrant attendants, servants, or personal employees of ambassadors, diplomats, consular officers, foreign government officials or international organization officers.24

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It is important to assess where to file the civil action. Will your client file their own complaint with the court or first with a specific administrative body or civil law enforcement agency? You must make the determination of what is appropriate for your client, as there may be tradeoffs in the amount of money that can be feasibly recovered in each option, the timeline and speed of the process, and the enforceability of a judgment or order. You may generally be obtain to obtain higher damages (because they include other forms of legal claims and damage calculations) for a case filed in court, but the case may drag on longer than a case that is filed before a specific administrative office. For example, wage and hour claims under the California Labor Code may be filed at the Department of Labor Standards Enforcement (Labor Commission or DLSE) or in court. The statute of limitations is three years for state law wage and hour violations if a claim is filed at the Labor Commission, and it is four years if it is filed in court under Business and Professions Code 17200. In addition, a trafficking survivor may file a PAGA claim (Private Attorney General Act) claim within one year. This law permits employees to file claims to pursue fines against employers for Labor Code violations that would normally be available only to the State of California and to keep a portion of the fines. (Cal. Lab. Code § 2698 et seq.) Another question of where to file the case is if it should be filed in state or federal court. This is not a straightforward calculation, as each state’s laws differ greatly. Another consideration is where the jury pool will be selected—is it a place with heavy anti-immigrant sentiment? Another consideration is jury unanimity in civil cases. Are there any precedence of previous trafficking cases where the survivor was positively highlighted by the media? What are the reputations of the judges you are likely to draw in state and federal court? For example, in civil cases in California courts, a 12-person jury can render a verdict if three fourths of the jurors agree, whereas in civil cases in federal courts, a jury verdict must be unanimous unless, before trial, the parties agree to a non-unanimous verdict. Comprehensive Screening for Civil Remedies Because many claims have statutes of limitation that run from the last trafficking incident (usually when the survivor leaves/escapes the trafficking situation) and intentional torts (which usually have short statutes of limitations), it is vital to screen for civil remedies immediately and to inform survivors of their options before they lose them. One growing concern or area of

24

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See www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6e7bf0 a4017ae210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d 6a1RCRD.

awareness is the natural tendency of civil legal services to silo or focus on remedies within that practice area. It is natural to screen for eligibility and pursue legal actions that are familiar. Thus, screening for civil remedies usually has entailed issue-spotting of individual claims (e.g., non-payment of wages, child custody issues, breach of contract claims, tort claims, false imprisonment or intentional infliction of emotional distress). However, because there are so many different types of potential civil legal claims in a trafficking case, it may be advisable to create an affirmative intake and screening process. (See Appendix J: Sample Trafficking Questionnaire, which is one attempt at screening for civil issues.) Efforts are under way through the Legal Services Committee of the SBCEHT to create and pilot a system to comprehensively screen and advise human trafficking survivors of the range of civil and administrative remedies available to them. If legal options were identified, the attorney would advise the survivor of her or his options, some of the risks and benefits and the time-lines/deadlines for pursuing these options. While many survivors may choose not to pursue some remedies and others may not be eligible to pursue some courses of action, it is vital to screen and advise clients as soon as possible about those options that are available, given that many have short statutes of limitation. The concept behind this comprehensive screening of civil legal remedies is that brief intake forms would be provided to legal services, and other potential points of identification (e.g., EEOC). These initial intake forms are designed to be brief, userfriendly and helpful in identifying survivors of human trafficking potentially eligible for civil and/or administrative legal services. Ideally, pro bono and sliding-scale legal services providers would be available for referrals for representation on whatever options the survivor chooses to pursue. Similarly, defensive civil legal representation would be available in cases where the traffickers decide to sue survivors as a means of intimidation. What Are the Different Types of Legal Causes of Action a Trafficking Victim Can Bring against Their Trafficker in a Civil Action?

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Before state and federal trafficking laws were created, those subject to trafficking crimes could bring civil suit under panoply of employment, labor, contract, and tort claims. See Appendix HH: Sample Civil Complaints for Trafficking Survivors and Appendix II: Sample Verdict for Civil Trafficking Case. The TVPA of 2000 did not include a civil remedy, but the TVPRA 2003 created a new civil remedy under 18 USC § 1595 to permit victims of forced labor (18 USC § 1589), peonage, slavery, or involuntary servitude (18 USC § 1590), or sex trafficking (18 USC § 1591) to file a civil action against their traffickers in an appropriate district court and recover actual and punitive damages and attorney’s fees. There is a statute of limitations of ten years from the last act of trafficking. Kim and Werner note that 18 USC § 1590 is a “catchall provision, incorporating all the trafficking-related violations enacted by the TVPA … there may be a private right of action for each and every provision of 18 USC §§ 1581–1594, so long as the defendant ‘recruits, harbors, transports, provides, or obtains’ the victim.” Kim and Werner explain that this includes expanding the private right of action on the bases of actions such as document theft under 18 USC § 1592, or attempt under 18 USC § 1594(a).25 Other states have

25

Kathleen Kim & Daniel Werner, Civil Litigation on Behalf of Victims of Human Trafficking, Legal Aid Foundation of Los Angeles, at 30 (2008).

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now passed laws for a private right of action for trafficking victims. California created the first state trafficking private right of action signed into law in 2005 in Cal. Civil Code § 52.5. Under this law, a victim of trafficking defined under Cal. Penal Code § 236.1 may bring a civil action for actual, compensatory and punitive damages, and injunctive relief. It also provides for treble damages, attorney’s fees, costs and expert witness fees to the prevailing plaintiff.

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Although under 18 USC § 1595 there is a ten year statute of limitations, generally, statute of limitations to bring criminal and civil cases are limited based on the type of specific claims your client has, and differ between different state and federal laws. Under Cal. Civil Code § 52.5 the statute of limitation is five years from the date when the adult trafficked person was liberated from the trafficking situation. Trafficked minors under Cal. Civil Code § 52.5 have eight years from the date that the minor reaches majority age to file a civil suit. However, note that although certain crimes and civil causes of action have a longer statute of limitation time periods, certain crimes and civil causes of action that your client may have been subjected to, such as false imprisonment, tend to have very short statute of limitations. You may want to assess these factors very quickly up front to understand the kind of timeline you are facing in helping your client assess their legal options. Human trafficking survivors may also pursue wage and hour claims under the federal Fair Labor Standards Act (FLSA) and/or the California Labor Code. State laws, such as in California, may protect workers more than federal laws, and so it is worth making this assessment. The California Labor Code provides for a minimum wage of $8.00 per hour; overtime after 8 hours in a day and 40 hours in a week; and waiting time penalties of 1 days’ pay for a maximum of 30 days for late final paychecks (Cal. Lab. Code §§ 202 & 203). Although personal attendants are excluded from the overtime provisions of the Labor Code, if a personal attendant performs tasks other than feeding, clothing, and supervising the client, then overtime rules might apply; housework that is not confined only to the client’s personal space might also qualify the employee for overtime. (Cal. IWC Wage Order 15). It is important to consult the California Industrial Welfare Commission’s (IWC) Wage Orders for provisions that are unique to specific occupations.

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There are also many tort claims available, although many of them have extremely short statute of limitations (SOL). They include but are not limited to the following (also, the SOL are rough guidelines—you should use due diligent to double check them): intentional infliction of emotional distress (two year SOL), false imprisonment (one year SOL), assault (two year SOL), battery and sexual battery (two year SOL), fraud (three year SOL), invasion of privacy (one year SOL), conversion (three year SOL), negligence (two year SOL), negligence per se (two year SOL); negligent misrepresentation (two year SOL), negligent infliction of emotional distress (two year SOL) and Cal. Labor Code 970 to induce an employee to relocate by knowingly false representations (one year SOL). Note that in a claim for Negligent Infliction of Emotional Distress, negligent misrepresentation, negligence per se, or negligence, it might be possible to recover from a trafficker’s insurance carrier, particularly if any crimes were committed in someone’s individual house or company. Note that the deeper pockets of an insurance company, may, however, also bring about a new set of attorneys and make the case very complex, and so these options must be weight carefully. Breach of contract (written and oral) are also civil claims

that may be pursued on behalf of human trafficking survivors, and the SOL for a written contract is generally four years and two years for an oral contract. Trafficking survivors may also pursue discrimination and harassment claims under federal or state law, and these are usually filed with administrative offices and not in court. Title VII covers claims for race, color, religion, national origin, and sex discrimination and harassment. The American Disabilities Act (ADA) covers claims for disability discrimination and harassment, and the Age Discrimination in Employment Act (ADEA) covers claims for age discrimination and harassment. Human trafficking survivors with Title VII, ADA, or ADEA claims must exhaust administrative remedies by filing a claim with the Equal Employment Opportunity Commission (EEOC) within 300 days and filing suit within 90 days of receipt of the right to sue letter. There are also usually state remedies for these claims as well. Human trafficking survivors may also pursue claims for race, religion, national origin, sex, medical condition, disability, and sexual orientation discrimination and harassment under the California Fair Employment and Housing Act (FEHA). The claimant must file a claim with the Department of Fair Employment and Housing (DFEH) within 365 days and file suit within one year. Restraining Orders and Injunctions A civil restraining order or protective order is also available to survivors of human trafficking. This is form of injunctive relief that takes places in state court and is a familiar tool for many advocates for domestic violence and elder abuse survivors. Civil restraining orders are meant to protect the survivor by creating an order to enjoin the restrained party from communicating, usually directly and indirectly, with the protected party. It may also restrain the party from owning firearms, having to keep a certain amount of physical distance away from the protected party, used as a kick out order to mandate the restrained party to move out of a shared residence, and order restitution. Violations of this restraining order can result in criminal action against the restrained party, and can be used as evidence of ongoing abuse.

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In California, survivors of domestic violence can protect themselves and certain family members from intimate and abusive partners and family members. This is helpful if the trafficker is a family member or has a sexual or intimate relationship with the victim. These restraining orders can be used to establish some preliminary child custody, support and visitation, as well as spousal support. These orders can be used to the survivor’s favor as they initiate dissolution proceedings or face further child custody and visitation battles. Elders and adults with disabilities can file specifically for an elder restraining order. Civil harassment orders are available for those who do not have intimate relationships. Restraining orders can be renewed, and offer great protection, especially if there is no criminal protective order in place. However, filing for a restraining order requires that the other party be served properly and that the trafficker have their chance in court to confront the survivor and fight the restraining order. This experience can be traumatizing for many survivors. Advocates have also increasingly seen abusers and traffickers use restraining orders to their own purpose to retaliate against survivors. In these cases, it is important to help the survivor contest the restraining order and file their own cross restraining order.

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§ 5.6 Defense against Discovery There are different ways that discovery can impact a human trafficking advocate and their client. Most frequent and typical is for advocates to receive a subpoena for records only. Likely if there is a criminal case, your client will willingly cooperate as a witness in the prosecutor’s case in order to protect your client’s immigration options. If your client is unwilling to cooperate, she may be subpoenaed by the prosecutor and/or arrested as a material witness. Specifically, subpoenas in California can request records only, testimony only, or testimony and records. You can also be issued a subpoena as a party or a nonparty in the legal proceeding or your client may be a party or a nonparty in the proceeding. In another example, a nonparty to the legal proceeding can be issued a subpoena because that nonparty is a holder of records sought by the opposing party. Your client might be the target of the subpoena but never even receive notice that her private records are being sought via a subpoena to the hospital or school where the records are being held.26

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Your choices regarding how to respond can depend on the type of legal proceeding, type of subpoena and whether or not you and/or your client is a party or nonparty to a case. While immigration practice generally does not lend itself to civil forms of discovery, including depositions, negotiation and subpoenas, it is becoming more common for traffickers in criminal and civil proceedings to seek to obtain immigration-related information as well as other information about a survivor, such as medical records, school records, and other information. The subpoenas for documents and testimony may also go towards other individuals that know your client or that may have come in contact with your client, including case managers and attorneys. Receipt of a subpoena, whether from criminal defense attorneys or civil attorneys, for copies of immigration applications submitted on behalf of a client, or more generally for copies of immigration files, for other types of records, or for testimony as well, can be frustrating, disconcerting, and confusing. Therefore it is critical to remember that you do have options to defend yourself and/or your client against subpoenas and that attorneys have a duty to protect attorney/client privileged documents, work product privileged documents and other privileged documents. While this manual is not designed to provide legal advice or instructions on how to respond to a subpoena, what follows is some fundamental information about subpoenas that we hope will be helpful in assuaging the confusion and fear that can ensue with the receipt of a subpoena.27 Consistent precedent-setting protocols and procedures you create within your office, with your client, case managers, and law enforcement partners can help provide greater protection for your client and save time down the road.

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It is important for the advocate and/or legal representative to consider warning potential record-holders that the survivor’s records may be requested by the opposing party and to possibly urge that the recordkeeper provide you and/or your client with notice if that should occur. 27 For specific examples on how to combat subpoenas for U visas, see the manual by the Stanford Law School Immigrants’ Rights Clinic and Bay Area Legal Aid, Understanding and Responding to Subpoenas: A Guide for Immigration Attorneys Representing U-visa Applicants, 2010, available at www.asistahelp.org/documents/resources/Immigration_Lawyers_Subpoena_Guide2_D022E40BC214D.pdf

The starting point in figuring out how to respond is to understand what your legal obligations are after being served with a subpoena.28 The subpoena is not a document that is officially issued by the court but it is deemed to have the same power as a court order and so you can be sanctioned if you do not respond in a timely and proper manner.29 Failure to respond can be punished as contempt of the court. Therefore, it is important to take a subpoena seriously and to review it carefully even if you believe that the information requested is protected or irrelevant to the legal proceeding. Next, you will want to assess what options you have and these include: 1. Understanding the Case or Proceeding and the Laws Related to the Subpoena: It is generally recognized that a subpoena cannot be issued pending a civil, criminal, or administrative proceeding. You cannot be subpoenaed by a trafficker if there is no corresponding proceeding, and vice versa. Thus, when receiving a subpoena, it is important to first check the validity and existence of the legal proceeding that the subpoena is supposedly connected to. Valid subpoenas should include captions that identifies the court or body issuing the subpoena, the names of the parties, and the assigned court docket number. This is also important because your options and relevant laws will differ greatly depending on whether or not your subpoena is issued in a criminal or civil case, state or federal court. You can also ascertain if the subpoena was properly served and in a timely manner. 2. Challenging and Resisting the Subpoena: Finding procedural defects, such as lack of personal service, can be very helpful and should be one of the first actions that a recipient takes because such defects can void the subpoena in its entirety; you may be able to file written objections, file a motion to quash in whole or in part or to modify the subpoena, or seek a protective order from the court; or 3. Comply with the Subpoena Will Protecting Your Client: At times you will simply have to comply with the subpoena by responding in a legally appropriate way while keeping in mind the best interests of the client, including, weighing all the costs and benefits of your possible response, such as whether or not the information being requested is already obtainable or will soon be available in the public sphere. When initially reviewing the subpoena, it can be helpful to keep in mind three important grounds for objecting to a subpoena’s requests: a) lack of specificity of the request; b) lack of relevance of the request; and c) the protected nature of the information being sought. It is important to also check recent case law that may offer additional strong arguments against production, such as requiring that any request for potentially protected



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See Federal Rule of Civil Procedure 45, California Code of Civil Procedure 1985 et. seq., California Penal Code Section 1326 et. seq. There may also be relevant rules governing licensees of the state, such as licensed psychologists, and practitioners will want to check those legal sources, such as the California Business and Professions Code, to determine if there are additional obligations applicable to the recipient. 29 For example, FRCP 45(e) notes that failure to obey a subpoena without adequate excuse may result in the issuing court holding the recipient in contempt of court.

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material be accompanied by a reasonable certainty that the records contain exculpatory evidence.30 If you are ultimately forced to produce information, it is important to request an in camera review with the court, redact as much irrelevant and privileged information as possible, and try to designate the highest level of confidentiality (e.g., attorney’s eyes only) and privilege possible. This should all be done in a way that protects your client without subjecting you to discovery sanctions.

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Disclosing Attorney-Client Relationship Prior to taking any action, it is important to consider that there is a debate about responding to a subpoena and acknowledging in your response that the survivor is a client. One position holds that admitting that there is an attorney-client relationship could be a breach of confidentiality if it is not already a publicly available fact. Under this theory, responding to a subpoena and acknowledging in the response that an individual is being represented by you or your office is a breach of your duty of confidentiality. One strategy for avoiding this breach is for your office to respond generally to the subpoena without such acknowledgement. This may be strategy to employ with your other fellow non-profits that also prepare U and T visas in responses to consistent subpoenas from defense counsel. The idea is to state that you are neither able to confirm or deny representation of the person named in the records, even if the defense counsel is engaging in a fishing expedition and merely subpoenaing all non-profits known to prepare U and T visas, and you do not represent the individuals mentioned in the subpoena. If you decide that the subpoena warrants more of a response or you have tried the first method and are being subpoenaed again, you may want to respond this time again that the office neither confirms nor denies representation of the individual but has reviewed the subpoena and a) has no documents and/or information responsive to the request for information, or b) have none that are not otherwise protected by privilege and responsive to the requests. This strategy allows you to respond adequately to a subpoena to avoid possible court-ordered sanctions and compels the requesting party to take further action if they are not satisfied by the response. On the other hand, the defense counsel may already be in possession of documents indicating your office is attorney of record. For example, requests for signed Supplement B forms (Law Enforcement Affidavits) to the investigator (police department or FBI) and/or prosecutor (district attorney or US attorney) may well have been provided to defense attorneys as part of the exchange of evidence. In this case, the defense attorney has your request and can assume that your office is attorney of record on the immigration case. Other times, the prosecutor’s office may have a policy not to keep records of signed I-918 or I-914 Supplement Bs. Because it is hard to impossible for attorneys that are not affiliated with the federal government to obtain information from CIS, this means that your office is the only place to access the final, signed Supplement B and immigration documents (including a lengthy declaration ripe with information for potential victim witness impeachment), which may prompt

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See T.W. v. State of Utah, 2006 WL 1700494 at 3 (Utah App.) Court of Appeals of Utah, where the court held that disclosure of protected records of a crime victim first requires showing with reasonable certainty that the protected records contain exculpatory information.

subpoenaing of your office. In civil cases, the civil attorneys may have given over information about your name and work as the immigration attorney as part of their own discovery obligations and disclosures. Occasionally, the U.S. attorney (or district attorney) will provide your name and contact information to the defense, since you may be the only attorney representing the survivor. The purpose would be to have the defense attorney contact you rather than the survivor directly. You should decide in the outset to determine whether you will be representing the survivor in the criminal context (say if the survivor receives a subpoena or is called to testify) or whether you will assist the survivor to find criminal legal representation. As for the subpoena, in both these scenarios, it can be argued that the client has been acknowledged as your client, and thus, your office has an obligation to address the subpoena. It does not mean that you should acquiesce to the subpoena and fighting the subpoena is usually in the best interest of your client. Criminal or Civil Proceeding? How to respond to a subpoena and how you can resist it greatly depends on whether or not the subpoena is issued in a criminal or civil proceeding. In California, for example, in civil subpoena duces tecum practice has largely been developed by statutory law, while criminal subpoena duces tecum practice has been mainly developed by case law. The differences in criminal and civil subpoena practices may mean that civil practitioners may erroneously try to attack criminal subpoenas with standard attacks used against civil subpoenas that are irrelevant to criminal subpoenas. For example, moving to quash the subpoena on the ground that it lacks specificity, is irrelevant, and must show good cause for discovery is a common tactic in attacking civil subpoenas. However, what allows criminal subpoena fishing expeditions to occur is that there is frequently no statutory requirement of specificity for criminal subpoenas, and constitutional concerns of due process usually weigh in the favor of providing exculpatory information to the defendant in criminal cases. Because of this, defense attorneys are usually able to successfully prevent the granting of motions to quash on briefings alone and demonstrate that greater specificity and relevance may be show in camera review (hearing in private with the judge excluded from the public).

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In California, a criminal subpoena requires the person subpoenaed to produce the records in court for inspection by the person who issued the subpoena, and does not require the person subpoenaed to turn the records over to the person issuing the subpoena. Thus, if you are subpoenaed, you can first submit the documents to the court to inspect them at an in camera hearing. The in camera hearings usually attempt to balance the constitutional interests of the defendant with the privacy interests of the person being subpoenaed. At the in camera hearing, the party can move to quash the subpoena again, and can assert objections and raise claims of privilege against disclosure.31

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This section derives from Robert Scofield, “Ethical, Civil Liability, and Tactical Issues in the Use of the California Criminal Subpoena Duces Tecum,” last updated April 13, 2011.

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Once you have moved to quash the subpoena, the defendant has the burden to demonstrate that information sought is relevant. The defendant will then likely present theories of relevance at the in camera hearing in order to protect his Fifth Amendment and Sixth Amendment rights, in addition to the defense counsel’s attorney-client and work-product privileges to also ask for an in camera hearing. This means that there may be at least two in camera hearings, and the court will usually make a judicial determination and review documents first before deciding whether or not the defense is entitled to access the information.32 During the in camera hearing, if required to produce documents, you should ask the judge to be able to redact the documents for relevance and privilege before the information is given to the defense.

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Challenges to Subpoenas Determining what objections, if any, that may exist, first depends as we mentioned earlier on whether or not the subpoena is a criminal or civil subpoena. Generally, objections to a subpoena range from procedural to substantive defects. Some examples may include:33     

 

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Proper service: Different procedures and subpoenas will require different rules about serving subpoenas in person, by mail, by a third party, etc. Witness fees: If your client is being called to testify, witness and mileage fees will usually be mandatory, especially if the witness has to travel far to do so. However, this is usually not necessary for subpoenas just requesting documents. After discovery deadline: In civil cases, some courts have concluded that after discovery closes, a subpoena cannot be used to obtain information that could have been produced during discovery. Unreasonable response time: Subpoenas usually need to allow for reasonable time for compliance. For example, you should object to a subpoena that seeks thousands of documents with very little time to respond, such as a few days. Relevancy: The information sought should be relevant to the subject matter and reasonably calculated to lead to the discovery of admissible evidence. Note that usually whether or not the information may be inadmissible at trial does not make it automatically irrelevant. Undue burden and expense: You should file a motion to quash or modify the subpoena if the request will cause an “undue” burden or expense on the witness. Be specific on what the burden would be and do not rely on general statements. Lack of possession, custody or control: You can object to a subpoena if it seeks documents and information that are not in the possession, custody, or control of your client. Note that documents that your client can demand, such as bank records, also count—it need not be in the physical custody of your client. Privileges: Be aware of your attorney-client and work-product privileges to assert. However, also file objections on the bases of other privileges if possible, especially local

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Robert Scofield. “Ethical, Civil Liability, and Tactical Issues in the Use of the California Criminal Subpoena Duces Tecum,” last updated April 13, 2011. 33 This list derives from Ronald Hicks, Jr. “Litigation: The 3 Steps of Responding to a Subpoena.” Inside Counsel. July 12, 2012.

and state privileges, which may be broader than federal privileges. For example, in California, there are trafficking caseworker-client privileges. Motion to Quash While not always the appropriate response to a subpoena, a Motion to Quash a subpoena, in whole or in part, lets both the court or the attorney requesting the documents know that your office objects to the subpoena and the grounds for that objection. [Motions to Quash are appropriate when the subpoena is defective, but have been accepted as a way to object to the subpoena in general.] Commonly, objection to the subpoena will address such issues as request for protected documents, and the specificity or lack of specificity in the subpoena, as well as any other defects in the subpoena. As mentioned earlier, be aware that responses to civil subpoenas are very different from criminal subpoenas. While vague, overbroad subpoenas that seem like fishing expeditions can be successfully addressed in civil subpoenas, there are few restrictions on criminal subpoenas. Arguing that the information requested is protected can be very effective. The case law on attorney-client privilege has established that this privilege is absolute except in very narrow circumstances. Attorney-client privileged documents are arguably anything created as a result of communications between the client and attorney. Work product privilege is less absolute, but can protect memos on assessment of the theory of the case and analysis of the strengths and weakness of the claim. This is especially important to assert on the drafts of cover letters, forms, and declarations of your client. The documents the subpoena often requests and which the defense will say is outside the scope of privilege is the application for immigration relief that is submitted to CIS.

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One argument that has been made in motions to quash is to protect the application is under the Federal Nondisclosure provision of the Violence Against Women Act (VAWA). Under § 1639 of VAWA, federal employees (including CIS) cannot disclose to the abuser information received from the domestic violence victim or based decisions on applications from information received from the abuser. These provisions have been held to apply in human trafficking (T visa and U visa) cases. The argument is that if the defense is unable to get information from CIS on the case (e.g., a copy of the application), then the defense should not be able to end-run the government and get copies from the attorney. In other words, § 1639 indirectly protects the attorney from having to submit copies of the applications filed with the government, which is bound to protect these same documents. This argument has been made successfully to at least on local Superior court judge, based on a case involving an unsuccessful attempt by defense in a VAWA case to get copies of documents filed with CIS. Hawke v. U.S Department of Homeland Security et al. No. C-07-03456 RMW, 2008 U.S. Dist. LEXIS 87603, at *19 (N.D. Cal Sept. 29, 2008). See Appendix MM: Sample Redacted Motion to Quash. Remember that prosecutors can also help file motions to quash and be great allies in quashing the subpoena. You can contact the prosecutor’s office immediately after being subpoenaed. In California in the case People v. Superior Court (Humberto S.), 43 Cal. 4th 737, 755 (2008), the California Supreme Court stated that the prosecution was entitled to participate

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in third party subpoena hearings with the trial court’s permission. The prosecutor’s motion to quash and argument at the third-party discovery hearing did not constitute a representation of third-party interests. Because prosecutors frequently practice before the judges and are familiar with their preferences and courtroom rules and proceedings, it may be very helpful for immigration and civil attorneys less familiar to ask for assistance and guidance.

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Note that there are usually other laws to protect the privacy of an individual’s personal records, such as those related to medical or mental health and school records. Most laws typically require third-party notice of crime victims and of the individuals that the person’s records are being subpoenaed if a hospital or school is subpoenaed, for example. In this case, as your client’s attorney who the person who records are being sought, can file a motion to quash and object to disclosure of documents.34 Make sure to assert these other laws in your objections. Strategies to Prevent Disclosure As subpoenas are becoming more common in the context of domestic violence cases and U visas, some lessons learned may be useful in the T visa and human trafficking context. First, it is helpful to remain under the radar of defense attorneys as long as possible. Second, it is important to remember that you may be subpoenaed, and that the protocols of communication and retention of your documents and communications with your client and others (e.g., law enforcement, case managers, etc.) should be carefully done from the start. All of this may also include figuring out a strategy with the prosecutor about whether or not the prosecutor needs to know if and when a T visa or U visa has been filed with the client, as well as the timing of your request for a Supplement B. It should not deter you from requesting for a Supplement B from law enforcement and filing a T visa or U visa (also what happens if LEA denies request). It can also be very helpful to work with fellow advocates in the field so that you all can have a unified response to subpoenas issued in any human trafficking-related case. For example, in one situation, a criminal defense attorney was unsure if the survivor had secured legal representation for immigration or other purposes. Therefore, the defense attorney proceeded to send subpoenas for records to all the local direct service organizations that offered services for trafficking survivors with the objective of discovering if the survivor was being represented by any of them and if so, the attorney could then focus efforts on demanding discovery from that specific agency. One possible strategy to defeat this kind of fishing expedition could have been for the agencies to have uniformly responded that none had any records responsive to the subpoena and that there was no confirmation or denial of representation of this survivor. It is helpful for local providers to find pro bono attorneys who are willing to be available and represent immigration attorneys in either the criminal or civil context on subpoena matters. This representation allows the immigration attorney to decline to answer questions, avoiding any appearance of breaching attorney-client privilege. Second, if there is a good chance that your office may receive a subpoena for records one possible way to minimize the work needed in the future is to maintain separate files or separate sections in a client’s file by types of privileges. For 34

Robert Scofield. “Ethical, Civil Liability, and Tactical Issues in the Use of the California Criminal Subpoena Duces Tecum,” last updated April 13, 2011.

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example, the client file (s) could include a section of attorney-client privileged documents, a section of work-product privileged documents, a section of documents “protected” under the Federal Nondisclosure provisions of § 1639, a section of public record documents, etc. Example: A nonprofit law office received a subpoena by a criminal defense attorney for all “letter, records, applications, etc.” regarding the VAWA petition of a domestic violence victim. As it turns out, the case was an intersection case and the law office had filed based on human trafficking rather than domestic violence. The office filed a Motion to Quash in response, and after 5 hearings, the judge determined that he did not need to review the attorney-client privileged documents or the document protected under the Federal Nondisclosure provisions of § 1639. He did request to review the work-product privileged documents and the public record documents in camera to determine if those needed to be provided to the defense. After a review of the documents, the judge concluded that the defense could have access through other means of the public record documents, and that the work-product privileged documents were not relevant to the case. In this instance, the law office was not required to submit any records to the defense. Also, remember to try to draw up co-counsel and common interest privilege agreements in writing. As discussed in other sections of this manual, and as a reminder, it is crucial that the human trafficking team of victim services providers, law enforcement, medical providers, and their interpreters be protected from subpoena to the extent feasible. Case managers and other who the client cannot assert absolute privileges with should also retain and have less access to confidential and privileged information. Thus, restricting the information survivors relate to victim services providers (case managers, doctors, etc.) to only that which is necessary to do their work will help avoid subpoenas and introduction at trial of conflicting statements. Remember that law enforcement is subject to Brady disclosure requirements to provide exculpatory evidence, and so limiting written communication and information about your client is important to establish from the start.

§ 5.7 Restitution

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As discussed earlier, advocates should strive to uphold crime victims’ rights in court. This includes obtaining restitution for victims of trafficking. Restitution in criminal cases is a method of trying to restore the victim for their losses, and usually occurs in monetary form. Assisting and advocating for a survivor to obtain restitution may help the survivor feel some closure or justice for their case. It may also help provide some monetary relief while the survivor attempts to reintegrate back into society, return to school, or reunify with family members. For an overview of the process and in-depth considerations for obtaining restitution in trafficking cases in federal court, we suggest reading “Maximizing Restitution Awards for Sex and Labor Trafficking Victims: A Guide for Federal Prosecutors and Pro Bono Attorneys,” written by

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Fulbright & Jaworski LLP and the Polaris Project.35 Restitution laws differ from state to state. For a guides on California’s restitution laws and processes, visit the website of the California Vitim Compensation and Government Claims Board.36

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Federal Laws Overview The two main federal restitution laws to know for trafficking survivors are the Mandatory Victims Restitution Act (MVRA) and 15 USC § 1593 of the Trafficking Victims Protection Act (TVPA). It is also important to know about mandatory restitution for convictions under Chapter 110 of Sexual Exploitation and Other Abuse of Children. Issuance of restitution orders is set out procedurally for the MVRA under Title 18, § 3664, and restitution orders under TVPA and SECA are to be issued “in accordance with” those procedures. In 1994, the Congress passed the Violence Against Women Act (VAWA), identifying certain types of crimes which were specifically subject to mandatory restitution, i.e., sexual abuse, sexual exploitation and other abuse of children, and domestic violence. The MVRA, which became effective on April 24, 1996, significantly reformed the law of restitution and the manner of enforcement of restitution orders. The MVRA created three categories of offenses related to restitution: (1) mandatory restitution offenses, (2) discretionary restitution offenses, and (3) other non-specified offenses. The MVRA created a new 18 USC § 3663A, which requires courts to order a defendant, convicted of or who plead guilty to certain types of enumerated criminal offenses, to pay full restitution without regard to the defendant’s economic situation. 18 USC § 3663A(c)(1)(A) requires mandatory restitution for victims of certain crimes. The term “victim” means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern. 18 USC § 3663A(a)(2). Trafficking survivors usually also qualify as a victim of a “crime of violence,” which is defined in 18 USC § 16 as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” However, in cases where the case is plead down and there is no mandatory restitution (e.g., a forced labor charge is reduced to alien harboring), you may still research case law and talk to the prosecutor about awarding restitution. Specifically, the restitution provision of the TVPA, 15 USC § 1593 provides for mandatory restitution to victims of human trafficking upon conviction of the trafficker “full amount of victim’s losses” “in addition to any other civil or criminal penalties authorized by law,” notwithstanding the provisions of MVRA 18 USC § 366318 USC § 3663A.

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This manual can be downloaded from www.polarisproject.org/resources/tools-for-service-providers-andlaw-enforcement. 36 The website link is www.vcgcb.ca.gov/publications/restitution.aspx.

This “full amount of the victim’s losses” is specifically calculated by the “greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act.” In cases of sex trafficking involving forced prostitution, even though the value of the victim’s labor to the defendant cannot be easily determined, restitution can still be calculated by assessing the defendant’s ill-gotten gains.37 It may also include medical services related to physical, psychiatric, or psychological care, physical or occupational therapy or rehabilitation, necessary transportation, temporary housing, child care expenses, lost income, attorney’s fees, as well as other costs incurred, and any other losses incurred by the victim as a proximate result of the offense.38 Convictions under Chapter 110 of the Sexual Exploitation and Other Abuse of Children (SECA) also provide for mandatory restitution.39 Some Chapter110 offenses include the sexual exploitation of children, selling or buying of children, and certain activities relating to material constituting or containing child pornography. Like 15 USC § 1593, SECA mandates restitution for the “full amount of the victim’s losses.” The Internal Revenue Service (IRS) has issued guidance in Notice 2012-12 providing that court-ordered restitution payments from an offender to a victim of human trafficking under 18 USC § 1593 are not included in the victim’s gross income. See Appendix JJ: IRS Notice 201212. Therefore, none of the restitution payments under 18 USC § 1593 will be taxed, meaning that asking for the restitution to be awarded under 18 USC § 1593 is extremely beneficial the survivor. Calculating Restitution Even when restitution is mandatory, there are no guarantees that a prosecutor or probation officer is providing accurate calculations and information to the judge for a restitution award. In other cases where the trafficker is being convicted under a statute that does not mandate restitution, such as alien smuggling, it is important to still advocate for restitution for the survivor. In civil cases, restitution may be one of the easiest and first forms of damages to calculate as well. In trafficking cases, restitution will most often come in the form of owed back wages, medical costs, and mental therapy. It is always helpful to consult a wage and hour attorney to calculate your own determination of what you think the appropriate back wages owed to your client is, and submit these calculations to the prosecutor and judge for consideration. This is especially important if the case is being charged in federal court, and your state laws have much stronger labor laws. This is especially true in California, where wage and hour laws, including penalties, may increase the calculation for back wages much higher than federal rates, and this is very important in cases involving domestic workers, where traditional labor laws do not always protect and favor them.

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37

See United States v. Kuo, 620 F.3d 1158, 1164 (9th Cir. 2010). 18 USC § 1593(b)(3); 18 USC § 2259(b)(3). 39 18 USC § 2259. 38

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Employment and labor law is complex and it is important to consult someone who is knowledgeable in such legal matters. But generally, it is important to calculate minimum wage rates based on city rates if they are higher. For example, the minimum wage in San Jose was raised to $10.00 per hour on March 11, 2013, and the minimum wage in San Francisco is $10.24 per hour. Using state law wage rates, in addition to calculating liquidated damages and penalties can significantly increase the amount of appropriate restitution your client deserve for their work alone. For example, in California, liquidated damages are recoverable under state law for failure to pay minimum wage (Cal. Lab. Code § 1194.2), and liquidated damages are available under the FLSA for all unpaid wages (29 USC 216(b)). However, the FLSA only provides for overtime after 40 hours in a week and does not provide for meal break and rest break penalties or waiting time penalties. In addition, the California Labor Code § 226.7 and 510 provides for a penalty of one hour for missed lunch periods and 1 hour for missed rest breaks with a cap of 2 hours per day. Under California state law, an unpaid lunch period of 30 minutes must be provided no later than the end of the employee’s fifth hour and a second unpaid lunch period must be provided no later than the employee’s tenth hour. The employee must be relieved of all work during the lunch period. A paid ten minute rest period must be provided every fourth hour or major fraction thereof. An employer may also be liable for unlawful deductions from an employee’s paycheck. Under Cal. Lab. Code § 2802, an employee is also entitled to reimbursement of all expenses incurred for work related duties. Creating a chart detailing these calculations and submitting them to the prosecutor and judge may create a significant impact on the total amount of restitution awarded to your client.

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You should also submit documents related to medical and mental health costs, although these costs may be harder to prove and recover than back wages. Be forewarned that doctors and medical professionals may not understand or be able to provide documents that you are looking for to support your client’s legal case, such as a letter or declaration making conclusive medical statements. Because calculating restitution and other damages may involve calculating costs based on medical evaluations, it is good to know in advance what type of medical evidence you think you can collect. Example: Luofen complains that her eye waters non-stop and adamantly asserts it only started happening after her trafficker hit her in the eye. However, there are no existing medical records for Luofen in China before she was trafficked to assert this was not a pre-existing condition. You ask her doctor if he can write a letter or testify that her eye waters non-stop and inexplicably due to her trafficking situation, but her doctor says he cannot make this determination and can only provide an assessment that states that Luofen complains of this condition. Furthermore, certain restitution laws allow for therapy. If so, you should request that your client be eligible for this, and provide for a supporting letter from a case manager or mental health professional estimating the amount of time (how many years, how many times a week, for how long of a session) and market rate cost (include and allow for interpretation and transportation as well) it would take.

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Advocating for Restitution Who to submit this information to and when is key in obtaining restitution. Usually probation officers are tasked with creating a presentencing report (PSR), which includes information about the victim’s losses and recommended restitution, as well as economic information about a defendant’s economic circumstances, assets, liabilities, and previous criminal history. Much of this information is obtained from the prosecutor, including the victim’s impact statement and if the victim chooses to submit their own restitution calculations. This PSR is then given to the judge to review before the sentencing hearing. Restitution, if there is any, is then ordered by the judge at the sentencing hearing. It is important that throughout this entire process that you are engaged with the prosecutor and encouraging them to obtain restitution for the survivor. Prosecutors play a great role in determining whether or not a survivor will receive restitution, how much, and when. They decide what statutes to charge traffickers, which in turn affects the restitution options and whether or not they are mandatory (for example, a charge for alien smuggling as opposed to involuntary servitude). They also make recommendations to the probation office or judge of who is a victim in the case, what amount of restitution they should receive from the sentencing, can negotiate how and when restitution is paid to the victim as part of a plea agreement, and can help enforce non-payment of restitution.40 When working with a prosecutor, it is worth asking to see if they will agree to work on a plea deal with the defendants that will mandate that the defendants pay as much restitution as possible (preferably the entire amount requested) up front as part of the plea deal. This will ensure that the victim does not have to wait prolonged periods and give up confidential information such as where they live to receive slow installments of the total restitution amount. It also ensures that the victim is paid as much restitution as possible, as oftentimes after the government forfeits a certain amount of the defendant’s assets, after the defendants have paid hefty legal fees, and defendants have potentially disappeared assets overseas or to other family members. If a defendant does not comply with the restitution order, you should discuss the matter with the prosecutor to see what can be done, such as considering it a violation of the trafficker’s parole. Even if you decide that you will be filing a civil case for your client, if possible, try to regain as much of the trafficker’s assets up front through criminal restitution as possible. This is money that is enforceable through the criminal justice system and take advantage of the government’s freeze on the defendant’s assets. You may also want to request that the prosecutor ask for payment of the entire amount of restitution (or a large portion of it) in cash up front as part of the plea deal to ensure speedy payment.

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Finally, in asking for restitution, if possible and the case has not gone to trial, ask the prosecutor to file and order restitution to your client by filing her name anonymously or only

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The United States Attorney Manual at www.justice.gov/usao/eousa/foia_reading_room/usam/ provides specific direction on when and how prosecutors should provide for restitution in plea agreements.

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identifying her through her initials so that her name is not publicly disclosed. Because the case will not have gone to trial yet, it is best to preserve your client’s confidentiality and name from the public record. You may have to work with the prosecutor to see how to structure the payment of the restitution by check with your client’s anonymous name.

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Applying for Restitution In some states like California, victims may be able to apply to the California Victim Compensation Program (CalVCP), which can help victims of violent crime obtain restitution quickly without having to rely on a court order. Victims can apply for compensation by filing an application with the California Victim Compensation and Government Claims Board. To be eligible, applicants must have been a resident of California during the crime (or the crime occurred in California), cooperated reasonable with law enforcement to arrest and prosecute the offender, and not have been involved in events leading to the crime or have participated in the crime. This last requirement has proven quite tricky at times, because trafficking survivors have been blamed for “participating” in the crime and denied restitution through this fund. For example, in one case, the trafficking survivor was coerced to post her own internet advertisement for commercial sex. It is worth advocating and explaining the circumstances to the board as part of the application. The application should be filed within one year of the date of the crime, one year after the victim turns 18 years of age, or one year from the date the victim or derivative victim knew that they had been harmed by the crime. If the application is based on specified crimes involving sex with a minor, a victim may file at any time prior to the victim’s 28th birthday. There are limitations to what kind of expenses can be filed for compensation. Many case managers, social workers, and victim witness advocates are well-versed in California with how to assist survivors in submitting receipts for expenses to apply for this program. Instructions on how to apply can be found on the CalVCP website at www.vcgcb.ca.gov/victims/howtoapply.aspx.

§ 5.8 Settlement Agreements Settlement agreements in civil cases can be very helpful to resolve a lengthy and costly trial and to assist your client in moving on quickly towards healing rather than re-traumatization through the legal process. If your client is working with pro bono attorneys and attorneys that typically do not work with traumatized clients, make sure that you provide some advice and counseling regarding the potential changing motivations, needs and perceptions of survivors of trauma—unlike most of their clients, it is not usually mostly based on just maximizing monetary damages.

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While most civil cases settle, settlement negotiations and agreements with traffickers can be very difficult. Most people settle their cases due to financial incentives to avoid lengthy legal processes and trial, avoid unexpected jury findings, and to protect their reputations. However, many traffickers frequently do not feel that they have done anything wrong or owe your client very much—in fact, many consider themselves to have done your client a favor. Or perhaps their

own trauma and thought processes means that they are less incentivized as the average person is to settle a case, and more likely to be unable to bargain like a rational actor. However, not all is hopeless, and settlement negotiation and agreement strategies must be crafted. Factors to consider when evaluating cases to settle include examining the defendant’s exposure to a favorable jury verdict and finding. Factors of where the case is being held (e.g., urban settings are known to find higher verdicts than in rural settings and may be more sympathetic to immigrants), the plaintiff and defendant’s likeability and credibility on the stand, extent of injury and objective evidence of the injury, and expense of litigation are all to be considered. In particular, because your client has been subject to trauma, keep in mind regularly that depositions and cross-examination may be harmful to your client in retraumatizing them, and that their trauma may also affect their likeability and credibility on the stand. When negotiating with traffickers and their counsel, stress the advantages to pre-litigation settlement, which may include lowered litigation expenses and saving the public reputations of the defense. If the traffickers have already been charged or found guilty in the criminal case, cite how terrible those facts will look to a jury. Be aware that defense attorneys in civil proceedings may have an incentive to drag the case out through discovery and may not encourage their clients to settle quickly, as many of them are paid hourly. Once the complaint has been filed, the case can settle at any time as long as both parties agree to all of the terms. Timing of the settlement negotiations is very key to a case. Usually it is key to enter into settlement negotiations before many expenses and costs are incurred (especially during discovery); however, the flip side is that frequently a case must be litigated and discovery must occur for both parties to gain enough information to evaluate the strength of their position in the case and the assets that the defendants may have. Sometimes settlement may even occur after trial and verdict by the jury because the verdict may be overturned on appeal.

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Usually, you will help your client initiate negotiations by asking for an amount of money somewhat higher than they want in expectation that the defense will offer a lower amount of money than they are ultimately willing to give to your client. So much of what these initial offers look like may depend greatly on the individual attorney and their tendency and reputation to either try to peg the settlement amounts reasonably close to actual amounts, or if they usually first attempt to over or under inflate settlement amounts. To peg the initial amount requires a rough idea of calculating damages, which in a civil case can be extremely difficult to do. Asking your client out of thin air what they think they deserve or want without providing them first with information may be stressful and disastrous. Asking your client to guess how much assets their trafficker has (which they can over or under assume easily), how easy it is to obtain those assets, and how to peg their experience of trauma and suffering in a numeric amount can be overwhelming. Thus, the first thing to do is get an idea as much as possible of the trafficker’s assets. If there is any information that can be obtained from the criminal process, be sure to do so. Even if a global settlement fails, you may ask the prosecutor to help you obtain current financial information under oath from the defense. This will give you an idea of the upper limits of the trafficker’s net worth. If the trafficker has assets

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overseas, it is possible to obtain pro bono co-counsel with international officers to investigate these assets for you.

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Because compensatory damages include restitution, it may be easiest to start first with the calculation of restitution of the most basic forms of damages. Otherwise, compensatory damages in a civil case are also meant to help restore the client back to where they were before the trafficking occurred through economic (special) and non-economic (non-special) damages. Economic damages usually include mental and physical medical expenses and lost wages, while non-economic damages include pain and suffering, loss of enjoyment of life, and other intangible losses. Economic damages in a civil case differs from restitution in that it is much broader, and can also include future losses based on lost earning power or prospective mental and medical expenses.41 Civil cases also allow for punitive damages, which are given to punish and deter egregious conduct, which often times, trafficking can be considered—outrageous, intentional, egregious conduct. Keep these options in mind when pegging that first amount. Once you have come up with the first amount with your client, make sure to keep them informed of your negotiating strategy, and decide how much movement back and forth between the offers will happen. Your client has to be advised of any settlement offers from the defense and you must remember to seek authorization and approval from your client before counteroffering or accepting any offers. Remember that your adult client, not you, has the ultimate settlement authority. Sometimes judges in mandatory settlement conferences will pressure both sides to settle. You may also choose to ask your client and defense if mediation may be a first good course to take before proceeding in litigation. You may also for pro bono mediation services as well to assist in this process. However, through the entire process, allow yourself to seem reasonable and amenable to settlement, but not so desperate for it and scared of trial. Remind the other side that you believe righteously that there is sufficient evidence to prove your case. In crafting a settlement agreement, confidentiality may be a primary concern for the defendant. Many pro bono attorneys and civil attorneys who are used to assisting clients who have mostly monetary bottom-line goals may not think this is a big deal and convince their client to agree to confidentiality provisions. Example: Nu-er looked at me sadly. “At the time when my lawyer asked me if I would be willing to never talk about my case again to settle the case, I thought it was a good idea. I didn’t think I’d ever want to think again about what had happened to me, and I was too embarrassed about the idea of telling others what I had let myself go through. The attorney also told me it was a good way to guarantee a few thousand dollars in hand, and having to go to court to testify sounded awful. However, six years later, I am thinking as I look at my young daughter that I don’t want others, especially young girls and little children, to grow up and be deceived the way I was. I want to tell other people

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For more detailed information on calculation of damages, see Kathleen Kim & Daniel Werner, Civil Litigation on Behalf of Victims of Human Trafficking, Legal Aid Foundation of Los Angeles, at 74-79 (2008).

it is okay, that it is not their fault about what happened. I want to tell our community that we need to change the way we treat others. I want to be able to tell our President that we need more money for shelters and not to treat victims like criminals. But I can’t forever because of the $5000 I took to settle the case. I would gladly give that money back to have that free to say what I want to say again.” While your client in the moment may agree that she may never want to talk about her case again, she may change her mind down the road. If your case is strong, you may want to push to negotiate that the defendant never be able to speak about the case, but that your client is able to discuss her case. You can structure concerns for confidentiality such as not having your client discuss her case in relation to the defendant’s names and specific disclose private information about them, as well as the specific settlement amount; however, you want to give your client as much freedom as possible to use this opportunity as a healing process beyond just monetary damages should they choose to do so later on. Other things to consider in settlement agreements that are not related to monetary damages include mutual releases (when the plaintiff asks the defendant to release the plaintiff from any liability for bringing the lawsuit, such as release of claims for malicious prosecution, defamation or abuse of process), stay away agreements/restraining orders, and indemnity provisions (when the plaintiff agrees to protect the defendant from someone to whom the plaintiff owes money stemming from the incident and may try to collect money later). The defendant may also want to ask for liquidated damages, where if there is a breach of the settlement agreement, particularly a confidentiality agreement, plaintiff will automatically owe the defendant money for each breach, if the defendant can prove that the breach occurred. Almost all settlement agreements include a provision that the plaintiff will dismiss the case against the defendant or, in a situation in which a civil case has not been filed, that the plaintiff will agree not to bring a case based on the trafficking against the defendant. In cases in which the parties have sued each other in what is known as cross-complaints, the settlement agreement will also include a dismissal of all cross-complaints. These are not uncommon things that defendants ask for in agreements, and any consideration of these clauses should be done so carefully.

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Damages can be collected in a lump sum or in periodic payments, or a combination of both. Structured settlements that require payment over time are usually done for tax reasons, as discussed in another section in this chapter. Make sure that you discuss and clarify who will be receiving payments for your client. If it is a large sum of money, will your agency be able to be the recipient for your client for many years? If it is for your client directly, you may not want to give away your client’s personal and private contact information to the defendant. There are also many different strategies to employ if there are multiple defendants in a case. You may try to play the defendants and their personal interests off of one of another. You can also settle with one defendant at a time, depending on what your strategy is. However, be careful of these settlements, as it can be very complex to figure out what the non-settling defendant’s responsibility for damages may be. Make sure you research relevant joint and several liability law.

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§ 5.9 Structuring Damages with Public Benefits and Taxes Damages and Public Benefits42

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One of the most rewarding parts of the civil and criminal processes is the successful judgments for restitution (criminal), compensatory and punitive damages (civil), and wage and hour awards (administrative) for the human trafficking survivor. Although these awards cannot erase the horrors and exploitation the survivor has experienced, they are in small measure some tangible form of justice and recognition of what was done to the person. As legal representatives, we have an ethical duty to be aware of, if not familiar with, the potential consequences of these awards to our clients’ eligibility for social services, as well as any tax obligations. Our duty is to advise our clients of any potential consequences/obligations, and if possible seek advice on structuring awards to avoid consequences. The information in the next two sections are summaries of key issues to be aware of, but the authors strongly recommend that the legal representatives of survivors have formal or informal MOU’s (Memorandums of Understanding) or volunteer expert assistance for clients in these areas, where appropriate. For legal representatives involved in assessments of restitution through the criminal process or damages through wage and hour or civil processes, it is important to understand what if any effects the receipt of restitution and/or damages will have on your client. The following analysis is one way to assess the impact on your client: First and foremost the legal representative should check with her client or the client’s case manager to determine if the survivor is receiving or might need to access anytime soon a government means-tested benefit. The means-tested programs fall in three principal categories: cash assistance, medical assistance, and food assistance. “Specific programs are listed by their federal names and outlined below: 1. TANF (a.k.a. CalWORKS): Case assistance for very-low-income families that include at least one child and a parent or caretaker relative. 2. Supplemental Security Income (SSI): Cash assistance for very-low-income individuals who are 65 years or older and are severely disabled. 3. Refugee Cash Assistance (RCA): Cash assistance for very-low-income refugees (and trafficking victims) who are no eligible for TANF or other types of cash assistance. 4. Medicaid (a.k.a. Medi-Cal): Health insurance for low-income individuals in certain demographics. Right now, only families with children, pregnant women, people with disabilities, and adults 65 and over can get Medi-Cal. In 2014, all individuals who meet certain low-income guidelines will be potentially eligible. 42

The authors would like to thank Lisa Newstrom, Benefits Attorney at Bay Area Legal Aid, for the information contained in this section.

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5. Refugee Medical Assistance (RMA): Short-term health insurance for low-income refugees (and trafficking victims) who are not eligible for Medicaid. 6. Food Stamps (a.k.a. SNAP, a.k.a. CalFresh): Food assistance for low-income individuals and families. 7. Any programs that are fully state-funded, usually to assist a very specific demographic (such as TCVAP or CAPI in California).” The next step for legal advocates is to identify the resource or asset limit requirements for the benefits program your client is participating in or applying to participate in. The resources limits can vary from program-to-program, but generally fall within the $500 to $3000 range. Resources can include such things like bank accounts vehicles, and life insurance policies. Check with your local legal aid organization for information on resource limits and rules for receiving benefits. Step three is to assess whether receipt of a settlement payment, criminal restitution, and/or damages award will put the survivor over the resource or asset limit for the public benefits she is currently receiving or is hoping to receive. If this is the case, then there are several options which might help your client “avoid or limit the impact [on her receipt of benefits]: A. “Spend-down by purchasing items not considered countable resources: Each program usually has rules excluding at least some items from the list of countable resources. If the client can convert the payment right away into an excludable resource, there may be little to no impact on benefits. For example, with SSI benefits, one vehicle per household is excluded from the resource limit, so a client receiving a settlement of $30,000 may choose to purchase a new car. For a larger settlement, the client may even be able to purchase a mobile home or house, since almost all benefit programs exclude the value of the primary residence from countable resources. Usually the lump sum is a countable resource beginning with the month after receipt. This means it is better to release a payment to the client on the first of the month, which allows maximum time for spenddown. Clients will need to be very conscious of program rules around what is allowable spend-down. Usually any purchases gifted to third parties, and any other “transfer of resources for less than fair market value” will not count as legitimate spend-down and may even trigger a penalty period of ineligibility.

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WARNING: Many clients accrue debt in the form of informal loans while they are on benefits. If the loan agreement is not legally valid under state law, the debt will not be legally binding and the client’s use of his or her resources to repay the loan may be considered a transfer for less than fair market value, triggering penalty periods.

B. “Convert the settlement to an exempt form of resources: Some benefit programs allow clients to set aside funds for certain purposes, which are then excluded from the resource limit. Individuals who receive SSI or Medi-Cal based on disability can set aside money in a Special Needs Trust, which can be used to pay for items other than food and shelter. 5-42

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If the Special Needs Trust is set up with the disabled individual’s own funds, it must be in the form of a Pooled Trust, usually managed by a nonprofit trustee. For many benefit programs, it may be permissible to set up a trust or dedicated account that can only be spent on a specific purpose related to gaining self-sufficiency, such as for educational or job-training expenses, or starting a self-employed business.”

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The purpose of making these assessments or being aware of these consequences is to help clients avoid losing or becoming ineligible for receipt of public benefits because of a restitution and/or damages awards. Even if you or your office would prefer to have a public benefits attorney work with your client on this issue, it is nevertheless the responsibility of every legal representative to acknowledge and advise clients about possible effects of restitution and/or damages awards on their receipt of or application for social services benefits. Damages and Taxes43 Attorneys, who are assisting their clients prepare and submit a victim statement for restitution purposes in the criminal proceedings, or who are working with civil litigators seeking damages and/or wage and hour claims on behalf of their clients, may want to be aware of and advocate for crafting damages/restitution in order for clients to limit tax the consequences of those awards. Generally, with respect to criminal restitution orders, it is imperative that the restitution be ordered pursuant to 18 USC § 1593. As mentioned earlier, on February 6, 2012, the Internal Revenue Service issued Notice 2012-12 (Internal Revenue Bulletin 2012-6) addressing restitution orders under the TVPA of 2000. According to this Bulletin, “[m]andatory restitution payments awarded under 18 USC § 1593 are excluded from gross income for federal income tax purposes.” Restitution ordered under any other provision will be taxable income; thus, it is important for restitution be order under 18 USC § 1593. Note that this applies to federal income tax provisions, and state income tax laws may be different. Damages obtained through wage and hour claims or civil litigation may not be exempt from income reporting for tax purposes. Pursuant to Internal Revenue Service publication 525 [Taxable and Nontaxable Income (2011)], back pay awards are taxable (p.3), punitive damages in most cases are taxable (p.33), emotional distress awards if related to physical injury or sickness are not taxable (p.32), and compensatory damages for physical injury or sickness are not taxable (p.32). Even if the restitution or damage awards are not considered taxable income, the awards need to be reported for the year(s) received. Documentation should accompany the reporting of the award, and your client should maintain these tax records for at least three years from the date the income is required to be reported (April 10 following the tax year). Since the authors of this manual are not tax attorneys, it is important to note that the above information is general 43

The authors thank Martina E. Vandenberg, Attorney and Open Society Fellow, as well as Carolyn Chen, Director of the Low-Income Tax Clinic, Santa Clara University Law School, for information in this section

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information and provided at a fixed point in time. Laws regarding taxes are complicated and change frequently. As advocates we should be aware of the tax consequences of receipt of restitution and damage awards, and facilitate or at least advise our clients to seek the assistance of a qualified IRS tax consultant after receipt of these awards.

§ 5.10 Non-Legal Survivor Services This is an immense area and encompasses all the services that a survivor might need, from shelter to mental health counseling to vocational training and more. These non-legal services are the backbone of the trafficking case because without this support, without these critical services, no survivor can be able to assist in her own legal proceedings or even in her own best interests. There are too many stressors burdening the client and critical needs that would go unmet which would overwhelm any human being, especially someone who has been victimized and exploited in such severe ways. The most important aspect of your involvement in this area is to establish and maintain clear communication with your client’s social service providers. You need to keep track of what is happening with your client, from housing options to scheduling of counseling appointments, in order to insure that the survivor’s overall legal interests are not potentially impeded. While there is absolutely no way to foresee many of the twists and turns in the path that your client will travel, you need to be sure to keep track of what is going on so that you can consult with your client regarding the possible pros and cons and ways that every new twist can impact the services that you are providing.

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Example: Patricia and I were meeting so that I could give her new work permit to her personally and to finalize her application for her green card. Should be a quick meeting, I thought. Then she walked in. Surprise! I’m going to have a baby! Patricia was so happy about her pregnancy, it was hard for me to show my concern about this new development when she was just getting herself ready for a new job and a new shelter that had rules about occupancy numbers. I have so many ideas for names! And my boyfriend, he’s taking me to Target and we’re going to buy the baby clothes and shoes and a crib and.… She brushed aside my question about her living arrangements after the baby came, even as I tried to tell her that the transitional apartment we’d had her waitlisted for, for over a year, would no longer be open to her with a new baby. Example: I had just finished Asha’s application for her husband’s adjustment of status when she called me. What happens to me if I get a divorce? What happens to him? Can he still get his green card? I don’t want to hurt him or anything like that but I think I want to marry someone else. It had taken over two years to successfully get her husband his T derivative status and into the United States, but evidently distance and separation had taken a toll on their relationship. I had to explain how, since he was still a T visa derivative and didn’t have his green card yet, a divorce now would mean that he would not be able to get his green card and that he would most likely have to leave the United States. I wondered how this would affect her civil case against her trafficker, since her

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husband was a key witness to the original promises made by the traffickers as well as to some of the most horrible abuses that had taken place. I made a mental note that I’d have to talk to Asha about this and about communicating this information to her pro bono team of attorneys at the law firm who were handling her civil suit.

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CHAPTER 6 IDENTIFYING AND DEVELOPING THE TEAM MEMBERS, COLLABORATORS AND RESOURCES

This chapter includes: § 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12

Law Enforcement Agencies (Federal and Local) ............................................... 6-1 Housing: Emergency Shelter, Short-Term, Transitional and Long-Term Options ................................................................................... 6-10 Social Service Providers and Case Management ............................................. 6-12 Health Services: Mental, Physical, Reproductive, and Dental Health ............. 6-12 Legal: Criminal, Civil, Immigration, and Employment Rights ........................ 6-14 New Partners/Changing Personnel in Coalitions and Task Forces .................. 6-15 Government Entities ......................................................................................... 6-16 Collaboration with International Office of Migration (IOM) ........................... 6-19 Working with Consular Offices and Embassies ............................................... 6-20 Language and Culture ...................................................................................... 6-20 Funds for Necessities........................................................................................ 6-23 Continuing Communication and Development of Working Relationship .................................................................................. 6-24

§ 6.1 Law Enforcement Agencies (Federal and Local) The array of law enforcement agencies that may be involved in a human trafficking case include the police department, sheriff’s office, district attorney’s office, highway patrol and Child Protective Services (CPS) among others. Within the federal realm, the U.S. Attorney’s office, the Federal Bureau of Investigations (FBI), and Immigration & Customs Enforcement (ICE) may work on a human trafficking case. Each agency may or may not have a designated agent or officer, knowledgeable about and responsible for handling human trafficking cases. As part of developing contacts, it is crucial that you meet with the designated members of law enforcement (both federal and local), and get to know these officers and agents and their departments and offices. Each office or agency will differ in its philosophy and approach to human trafficking, and it is essential that you understand these differences. As with communitybased agency members of the team, some law enforcement agents, officers, and attorneys will be extremely dedicated to human trafficking work. Those agents, officers, and attorneys will do more than fill an assignment. They may reach out to their colleagues in other departments to learn as much as they can. They may also reach out to their community-based service partners in attempts to coordinate efforts. An important starting point is identifying those law enforcement offices and/or departments that have committed resources and personnel to human trafficking, as

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well as those departments in which an agent, officer, or attorney is motivated and committed to the work of addressing human trafficking. In terms of philosophy, one crucial distinction between law enforcement agencies is their perception of the scope and prevalence of human trafficking in their jurisdictions. Many law enforcement agencies, especially local and state law enforcement, understand human trafficking to consist of solely commercial sex work. In these agencies, the concept of forced labor forms of human trafficking is limited, nonexistent, or a purely civil matter. In other words, cases of forced labor may be identified by these law enforcement agencies and dismissed because “that is not human trafficking since it does not involve commercial sex work.” Another area where law enforcement may or may not recognize incidents as human trafficking is “intersection cases,” cases that overlap with other crimes, such as domestic violence or child abuse. For some law enforcement agencies, when first informed of human trafficking, a common response is: “We don’t have human trafficking in our community.” It is a process of education and identification of survivors, which in time will shift this perception. Many legal representatives have chosen to work, at least initially, with federal law enforcement agencies. These agencies were tasked with identifying and working on human trafficking cases when human trafficking constituted a federal crime only. The U.S. Department of Justice, Civil Rights Division, in the early years’ post-passage of the VTVPA, generally received reports of human trafficking cases and contacted local FBI to investigate. In time, Assistant U.S. Attorneys were assigned to regions to coordinate federal efforts in human trafficking cases. As more and more states have made human trafficking a state criminal offense and as the U.S. Department of Justice has provided funding to local law enforcement agencies to form Human Trafficking Task Forces, the number of local law enforcement agencies familiar with and dedicated to addressing human trafficking has increased. Presently, the Polaris Project operates a hotline for reporting human trafficking, and where a local Task Force exists, Polaris refers the report to that Task Force. It is a good idea for agencies to call Polaris Project to introduce your services, linguistic capacity, and how you would like them to refer cases to your agency. Most Task Forces, while managed by local law enforcement, include both federal and local law enforcement agencies. In theory, these agencies cooperate when cases of human trafficking are identified. For the most part, the standard protocol remains that the federal agencies have the first right of refusal. Personalities and historical interactions among federal and local law enforcement will dictate the dynamics within and among these agencies. Trust and professional rapport between you and law enforcement agencies are extremely important. In order to work as a team on these cases, it is important that communication remains as clear and as open as possible, given each other’s professional restrictions. This does not mean that you will always agree about the designation of someone as a human trafficking survivor, extent of information sharing, and priorities in addressing the case. Professional goals, individual perceptions, and varying legal standards will affect how you and they perceive the situation. Remember criminal investigators and prosecutors are gathering evidence to prove guilt beyond a reasonable doubt. Thus, their burden is higher than what an immigration advocate must establish. As mentioned above, sometimes responses are colored by perceptions of what constitutes human

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trafficking. It is important to communicate frequently with law enforcement about each other’s roles and perspectives on the work. For example, a legal advocate’s ability to prove that someone is a trafficking victim and apply for a T visa is a different standard of proof and work from criminal prosecutors, who must prove the trafficker’s guilt, potentially in a trial setting. What a legal advocate considers a trafficking victim in accordance to the TVPA and a viable T visa case may differ significantly from law enforcement’s perspective on a viable criminal trafficking case. Regular meetings, such as coalition meetings and task force meetings, serve as efficient and effective means of general information sharing, training, and building of communication and trust. Law enforcement and service agencies should meet frequently to discuss each other’s roles in human trafficking work, to establish protocols, to address community requests for education and training, and to build personal and professional links. Understanding Specific Law Enforcement Agencies Law enforcement interests and agencies can be as diverse as service providers. There is a difference between criminal and civil law enforcement and their approach towards cases, the types of cases they work on, standards of proof, and type of enforcement. Understanding the culture of different law enforcement can help you decide how to formulate healthy collaborative relationships with different agencies for the benefit of your client. Many task forces and collaboratives pre-suppose that gathering all types of law enforcement together in one room to combat trafficking is a sufficient way for NGOs to know how to work with law enforcement. However, with the array of different types of law enforcement that exist, it can be confusing to understand the variations between law enforcement agencies and how to engage with them in a trafficking case. Typically the law enforcement that you will encounter in these cases can be divided in the following general ways: criminal and civil law enforcement, and local/state and federal law enforcement. Criminal law enforcement typically involved in trafficking cases can include but are not limited to local police departments, county district attorney’s offices, sheriff’s offices, state attorney general’s offices, FBI, U.S. Customs and Border Patrol, Department of State Diplomatic Security Services, Homeland Security Investigations (HSI) from ICE, U.S. Attorney’s offices, and the U.S. Department of Justice. Criminal law enforcement agencies typically deal with the highest burden of proof—proof beyond a reasonable doubt. This high burden of proof means that in assessing the viability of a criminal investigation and prosecution they will require more evidence than most civil and immigration advocates would to bring a successful case against a trafficker. Civil law enforcement agencies typically involved in trafficking cases include but are not limited to state agencies enforcing labor and employment laws (e.g., California Department of Fair Employment and Housing, California Division of Labor Standards Enforcement, Department of Labor, and Equal Employment Opportunity Commission). Most of these agencies rely on administrative and/or litigation to enforce laws. While it has long been accepted that criminal law enforcement agencies are eligible to certify U and T visas, civil law enforcement agencies have been both slower to develop U and T visa certification protocols and are less recognized as

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typical agencies to report trafficking cases to, despite the fact that they may come into contact with many trafficking survivors. To understand the agencies that you are likely to work with, it is important to know the agencies and where they may place their human trafficking investigations and prosecution work. Below, we discuss some of the most common federal agencies that you may come into contact with for trafficking cases. U.S. Department of Homeland Security Many trafficking victims, service agencies, and other community agencies fear ICE because of their role and reputation in immigration enforcement. ICE is the principal investigative arm of the Department of Homeland Security. ICE’s principal goals are to promote homeland security and public safety by enforcing federal laws governing border control, customs, trade, and immigration. ICE has two principal operating components: Homeland Security Investigations (HSI) and the Enforcement and Removal Operations (ERO).1 HSI investigates immigration crimes, including human rights violations and human smuggling. ERO focuses on identifying, detaining, and removing certain immigrants, including immigrants involved in criminal activity. Most people when they think of ICE raids and deporting immigrants are thinking of the mission of ERO. If you refer a case to ICE, you will likely want to refer the case to an agent in the HSI division, although if you work with an immigrant victim of trafficking in detention, you will likely also work with agents from ERO. HSI and their victim witness coordinators will usually handle the U and T visa certification requests, and each field office has their own process to grant these certifications. Be aware that working with HSI means you may simultaneously run the greatest risk of exposing your client to immigration removal and deportation (if not already exposed) because HSI can access your client and the trafficker’s immigration history quickly. Also be aware that all Continued Presence (CP) applications,2 regardless of who they are submitted by, are sent to the ICE Law Enforcement Parole Branch (LEPB), which has the sole authority to approve or deny CP applications.3 U.S. Customs and Border Patrol (CBP), another agency that falls under the Department of Homeland Security, has goals to safeguard the borders and ports of the United States from terrorism and other security issues. CBP is the largest law enforcement agency within the Department of Homeland Security. Even if you are not in a state bordering Canada or Mexico, you may come into contact with CBP if your client has been trafficked through or is sent through

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For more information, visit: www.ice.gov/about/overview/. Continued Presence is temporary immigration status authorized under the TVPA under codified at 22 USC § 7105(c)(3) that is provided to individuals identified by law enforcement as victims of human trafficking that allows them to remain in the U.S. temporarily during the ongoing criminal investigation. CP is usually granted for one year and may be renewed in one-year increments and practitioners usually rely on it to trigger certification from the Office of Refugee and Resettlement for benefits before a T or U visa can be obtained. 3 See www.dhs.gov/continued-presence. 2

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a border and/or port by air, sea, and/or land. Since CBP and ICE are both under the Department of Homeland Security, it is typically most helpful to work with CBP, in conjunction with HSI agents.4 U.S. Department of Justice The U.S. Department of Justice (DOJ) will sometimes prosecute trafficking cases. When working with what others will refer to as “Main Justice,” you will most likely work with prosecutors from the Human Trafficking Prosecution Unit (HTPU) of the DOJ’s Civil Rights Division.5 The HTPU was created in 2007 within the Criminal Section of the DOJ and usually works closely with Assistant U.S. Attorneys (AUSA) and other federal law enforcement agencies to prosecute human trafficking crimes. Specifically, human trafficking crimes prosecuted by the federal government, like other civil rights crimes, require notification to the Criminal Section pursuant to §§ 8- 3.120 and 8-3.140 of the U.S. Attorneys’ Manual. Thus, trafficking cases may sometimes be jointly prosecuted by the HTPU and local AUSA, by just the HTPU, or by just the local AUSA. Many local cases are prosecuted by federal United States Attorneys, who are the principal litigators for the federal government under the direction of the U.S. Attorney General. Currently, there are 93 United States Attorneys stationed throughout the 94 judicial districts in the United States, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands.6 United States Attorneys are appointed by, and serve at the discretion of, the President of the United States, with the advice and consent of the United States Senate. Each United States Attorney is the chief federal law enforcement officer of the United States within his or her particular jurisdiction. United States Attorneys conduct most of the trial work in which the United States is a party, meaning that they typically prosecute volume-wise more cases of different types of crimes than the prosecutors of the HTPU because of the scope of the work. AUSAs work under the U.S. Attorneys in each district. Thus, because U.S. Attorneys are politically appointed, it is important to know that their focus and policies on human trafficking may change with the priorities of the executive administration. Most of the time you will be interacting directly with AUSAs that tend to be career prosecutors, and it is important to try to develop positive relationships with AUSAs that may be handling the criminal cases or even coordinating anti-trafficking task forces. It is also important to have buy-ins from the U.S. Attorney’s office, as their support may mean increased resources and time for AUSAs to prosecute trafficking cases and dedicate time to antitrafficking task forces, in addition to setting the tone to collaborating with other law enforcement and NGO partners and working with victims. The FBI is a part of the DOJ and is a federal criminal investigative and an internal intelligence agency (counterintelligence) agency. The FBI typically splits their investigation of

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For more information, visit: www.cbp.gov/xp/cgov/border_security/human_trafficking/. For more information, visit: www.justice.gov/crt/about/crm/htpu.php. 6 For more information, visit: www.justice.gov/usao. Note that one United States Attorney is assigned to each of the 94 judicial districts, with the exception of Guam and the Northern Mariana Islands where a single United States Attorney serves in both districts. 5

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trafficking cases into two units: the Civil Rights unit and the Violent Crimes and Major Theft unit.7 Most of the investigations of child-related prostitution and pornography fall under the Crimes Against Children program of the Violent Crimes and Major Theft unit. Within the Crimes Against Children unit are Project Innocence Lost and Project Innocent Images. Most of the sex and labor trafficking cases involving adults, foreign nationals, and forced labor cases will fall under the purview of the Civil Rights unit. Thus, when reporting your case to the FBI, keep in mind what unit within the FBI that you are reporting your case to. U.S. Department of State The U.S. Diplomatic Security Service (DSS) is the security and law enforcement arm of the U.S. Department of State.8 Their job is to provide a safe and secure environment for implementing U.S. foreign policy, including monitoring the security and behavior of foreign diplomats within the United States. DSS can be a helpful contact in addition to ICE to protect the interests of your client’s family members and people overseas that may face retaliation and danger from the traffickers. The majority of DSS Special Agents are members of the Foreign Service in addition to being federal law enforcement agents. Do note that DSS also investigates passport and visa fraud, conducts personnel security investigations, and issues security clearances. It may be an appropriate agency to contact if your client was recruited and brought over through a visa process. However, keep in mind that another function of DSS is to assist foreign embassies and consulates in the United States, sometimes creating potential conflicts of interests if the traffickers are foreign diplomats, embassy workers, or consular workers. U.S. Department of Labor The goal of the U.S. Department of Labor (DOL) is to protect the benefits and rights and develop the welfare of job seekers, workers, and retirees, improve working conditions, and advance opportunities for profitable employment.9 The DOL largely combats human trafficking through two divisions: 1) the Office of Child Labor, Forced Labor, and Human Trafficking (OCFT) and 2) the Wage and Hour Division (WHD). The OCFT is part of the Bureau of International Labor Affairs (ILAB), and focuses on “research on international child labor, forced labor, and human trafficking; funding and overseeing cooperative agreements and contracts to organizations engaged in efforts to eliminate exploitive child labor around the world; and assisting in the development and implementation of U.S. government policy on international child labor, forced labor, and human trafficking issues.”10 In the context of an individual case, you will most likely be in contact with the WHD, which has designated regional coordinators for U visa petitions. The U-visa regulations under 8 CFR § 214.14(a)(2), specifically identify the DOL as a “certifying agency.” Although the DOL is a civil law enforcement agency, the DOL meets the requirements for this designation because of its “responsibility for the investigation or

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For more information, visit: www.fbi.gov/about-us/investigate. The Bureau of Diplomatic Security (DS) is the senior and parent agency of DSS. For more information, visit: www.state.gov/m/ds/about/overview/index.htm. 9 For more information, visit: www.dol.gov. 10 For more information, visit: www.dol.gov/ilab/programs/ocft/#.UM167m_LRTI. 8

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prosecution of a qualifying crime or criminal activity.”11 In 2011, DOL published a memorandum addressing WHD obligations to sign law enforcement certifications in the context of U-visa applications.12 See Appendix GG: U.S. Department of Labor U visa Process and Protocols Questions and Answer. While DOL recognizes that its certifying authority under these regulations is discretionary, it has made a policy determination to consider U-visa certification requests when crimes falling within the following categories are detected: involuntary servitude, peonage, trafficking, obstruction of justice or witness tampering. Currently, the DOL does not have any policy on issuing T-visa certifications; however, NGOs have been advocating for DOL to expand their certifying activities to T-visas as well. To report cases to the DOL, it is prudent to know who your regional coordinator for U visas is and to understand their case reporting and certification requests protocols and procedures. Equal Employment Opportunity Commission The U.S. Equal Employment Opportunity Commission (EEOC) is also a federal civil law enforcement agency responsible for enforcing federal laws against discrimination of a job applicant or employee based on their race, color, religion, sex (including pregnancy), national origin, age, disability, or genetic information.13 Most laws that the EEOC will enforce in trafficking cases are found in Title VII of the Civil Rights Act of 1964, particularly as applied to race, national origin, and sex (including sexual harassment).14 Note that the EEOC is generally limited to cases where the traffickers are employers with at least 15 employees. It may also not consider national origin discrimination to qualify your case for EEOC enforcement if the victim and trafficker are of the same national origin. Thus, if you have a case where the trafficker’s only employee is your client and they are both from the same country, the EEOC may not be able to enforce Title VII on your client’s behalf. However, be mindful that if your client was sexually assaulted, harassed, or raped by their trafficker (in either sex trafficking or labor trafficking cases), they may qualify for EEOC law enforcement on the basis of laws regulating discrimination based on sex and sexual harassment under Title VII. The EEOC is also able to certify U visas,15 so long as the enumerated crime is related to the unlawful employment discrimination investigation. See Appendix FF: Memorandum on Revised EEOC U visa Procedures. The EEOC so far remains unclear and has issued no written protocols for issuing T visa certifications. As with the DOL, NGOs are starting to ask the EEOC to issue protocols to consistently provide certification for T visas.

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8 CFR § 214.14(a)(2). Field Assistance Bulletin No. 2011-1, Memorandum for Regional Administrators, RE: Certification of Supplement B Forms of U Nonimmigrant Visa Applicants released on April 28, 2011. 13 For more information, visit www.eeoc.gov/eeoc. 14 See www.eeoc.gov/eeoc/interagency/trafficking.cfm. 15 In September 2007, the Department of Homeland Security/U.S. Citizenship and Immigration Services (DHS/USCIS) issued an interim final rule to establish requirements and procedures for aliens seeking U nonimmigrant status. 72 Fed. Reg. 53,014 (September 17, 2007). This rule named the EEOC as a “certifying agency” permitted to provide a certification in support of a petition to DHS/USCIS for a U visa. See id. at 53,014; 8 CFR § 214.14(a)(2). 12

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To report a case, unless the EEOC has designated a point person in their district, field, or local office, you are best off contacting the office that has the most jurisdictional ties to your client’s case. You may choose to either report to an investigator or contact an attorney in the EEOC office. Choosing between Law Enforcement Agencies With so many different types of law enforcement agencies requesting that you report your trafficking case to them, if your anti-trafficking task force does not have a unified reporting it can be difficult to decide which law enforcement agency to choose. Furthermore, the myth often is that the main conflict in all trafficking cases and collaborative efforts will arise between service providers and law enforcement. At times, this is untrue—sometimes the tension exists between different law enforcement entities. As shown above, the differing missions, goals, and philosophies can lead to tension between the different law enforcement agencies and choosing what law enforcement agency to report your case to may make you feel nervous about offending another law enforcement agency. Of course, you must analyze what you think is the best law enforcement agency to report your client’s case to based on whom you think will be the most victim-centered in their response and equipped to assist your client. Aside from individual relationships with specific officers, agents, and prosecutors, you should consider the nature of the law enforcement agency, your client’s individual case, and ongoing patterns and trends. First, as mentioned earlier, there is a difference between reporting your case to criminal and civil law enforcement agencies. Criminal law enforcement agencies operate with a higher burden of proof beyond a reasonable doubt and base much of their determinations of who is a trafficking victim based on the potential of prosecuting the case. Your client may also be fearful of criminal law enforcement because of past experiences (either in the United States or in their own home country). Criminal law enforcement also has more power to arrest and detain individuals; however, this includes not only traffickers, but also potentially your client and other witnesses. If your client changes their mind, they may still be arrested as material witnesses or subpoenaed in a criminal case. However, criminal law enforcement must provide exculpatory evidence to the defense and may also be able to better equipped place your client in victim witness protection programs than civil law enforcement. Civil law enforcement agencies generally operate on lower standards of proof. However, these enforcement agencies are newer to certifying U and T visas than criminal law enforcement, and in certain jurisdictions, may have less experience issuing them, potentially resulting in more delayed and denied certifications. Civil law enforcement agencies may be more limited in scope than criminal law enforcement in their mandate, in what types of illegal activities they can investigate, and thus, may conduct narrow interviews that do not capture the full scope of your client’s trafficking experience (e.g., only interviewing about the wage and hour claims, but completely ignoring issues related to threats related to immigration status). To date, most state civil law enforcement agencies other than the New York Department of Labor have yet to

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consistently provide U visa certifications, and it is unclear how many state civil law enforcement agencies have ever issued T visa certifications. In deciding whether to report to federal or local law enforcement, there are also many different factors to consider. Federal agencies tend to have fewer agents in one department compared to their local counterparts because they tend to be more specifically focused on particular types of crimes. Federal law enforcement agencies also tend to have numerically fewer cases to deal with than local law enforcement agencies. Keep in mind that only federal law enforcement officials, primarily from ICE, the FBI, and federal prosecutors within the DOJ, are authorized to submit Continued Presence applications for your client. Although federal officials may submit CP applications on behalf of state or local law enforcement, this level of coordination and potential desire for federal law enforcement to also be involved in the trafficking case may deter this scenario from happening on a regular basis. Keep in mind that under the law, T visa certifications by federal law enforcement are considered primary evidence.16 But state and local law enforcement agencies are not currently included within the regulatory definition of a law enforcement agency for purposes of certifying T visas. However, T visa law enforcement certifications from state or local law enforcement are considered valid secondary evidence. If reporting a case where the trafficking occurred in a far off locale (e.g., a different state), unless you have specific local law enforcement connections, it may be worth asking your federal law enforcement partners to connect you with the federal law enforcement of the other jurisdiction. In our experience, federal law enforcement is more likely to initiate an investigation telephonically (and thereby increasing your chances for a U or T visa certification). Local law enforcement cases may take significantly less time to prosecute than federal law enforcement cases; however, that may mean that local law enforcement may feel more limited in time and resources in investigating and building a criminal case in comparison to federal law enforcement. Be aware that certain local criminal law enforcement may be more used to signing a larger quantity of U and T visas, and may issue them more quickly than federal law enforcement. Local law enforcement may also deal with a broader array of crimes, such as domestic violence and rape on a regular basis, and your client may be a victim of multiple crimes that may or may not be related to her trafficking experience, but render her eligible for a U visa. Some anti-trafficking task forces have created good partnerships between federal and local law enforcement due to the need for federal agencies to require additional manpower, local intelligence and geographic coverage to investigate a complex crime like trafficking. As well as local law enforcement’s need for legal authority to go beyond their own jurisdictions to investigate and prosecute certain cases (e.g., when trafficking cases are multi-county, multi-state, or even across borders) and be able to run longer-term investigative methods and surveillance equipment. However, conflicts may also arise in these relationships if local law enforcement is required to abide by Sanctuary City policies (to not report or hand over certain suspects and criminals immediately to ICE), which may prove problematic in sting operations, multi-potential victim cases, and situations where the traffickers may also be deported.

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8 CFR § 214.11(f).

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Whatever you decide for your client, remember to be resourceful and that you may have to work with and report to more than one law enforcement agency in order to best represent the interests of your client. Remember to modify your expectations accordingly to the nature of the law enforcement agency and what their particular interests and angle may be to conducting an investigation for a trafficking case.

§ 6.2 Housing: Emergency Shelter, Short-Term, Transitional and Long-Term Options Housing for human trafficking survivors must include emergency shelter, short-term, transitional, and long-term options. Immediately after discovery and in some emergent situations, you will need to place your clients in safe, confidential settings. Some clients may need shortterm housing while they arrange to move to another region, re-locate to homes of family or friends, or leave the United States. From emergency shelters, your client will want to transition into more long-term, less secure settings as they obtain the means to secure and retain long-term housing by obtaining work authorization and establishing credit. Law enforcement agencies may have the capacity in some cases to provide emergency housing in motels or hotels immediately after “rescue” of survivors. For example, victim assistance programs through the FBI have the ability to provide hotel vouchers for several days. While not ideal given the isolation and lack of other support services available to survivors placed in hotels, this option is available at a moment’s notice. In some emergent situations, survivors have been housed in large facilities, such as on military bases, but again this situation is not ideal. It is important that survivors do not feel that they are trapped, under arrest, or in any other way threatened or deprived of their liberty. They need housing in a safe, supportive environment. Suggestions by local law enforcement that survivors could be housed in jails as a last resort should be discouraged at all costs. Traffickers frequently threaten survivors with jail if they attempt to escape, and thus this option would only reinforce the threats and prove the traffickers right. In many cases, domestic violence agencies have provided emergency shelter for human trafficking survivors, many of who were identified through law enforcement actions. In some regions, domestic violence agencies have been at the forefront of organizing service providers, and have themselves provided case managers and shelter space. Domestic violence shelters are an existing and, in many cases, a logical resource for human trafficking survivors. These shelters are organized and secure, with existing case managers and peer counseling. Since most cases of human trafficking involve women survivors, the domestic violence shelters are able to accommodate them. Difficulties arise if a large number of survivors are identified simultaneously or if domestic violence shelters have limited bed-space and are presented with a last minute request to house a survivor. The domestic violence shelters also need to assess the safety of other residents when housing a human trafficking survivor. However, not all survivors of human trafficking are women. Cases of male survivors and families with older male sons require alternative emergency housing options. While some

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traditional shelters, such as the Salvation Army may be able to house men, if needed, these shelters are not designed to provide the accompanying services or to be a safe, confidential location. Example: Laura was brought to the United States through false promises of work in the community and a loving marriage. She arrived in the United States and soon found that she was locked in the home. She was forced to cook, clean and provide domestic services to her trafficker. At one point her trafficker brought her two sons to the United States. One son was a young teenager and the other son was a young adult. Because of threats to report them to the police and immigration, the trafficker was able to keep all three locked in the home, afraid to try to escape. The two sons attempted to help their mother with the housework. When the trafficker beat or threatened their mother with weapons, the older son tried to protect her, often getting injured himself as a result. Finally, after a severe beating, an acquaintance called the police. The family needed immediate shelter, but since the mother refused to be separated from her two sons and most shelters could not take a family with an adult male, service providers scrambled to find shelter for the family. After much searching, service providers found that the only option was to pull rent money from an empowerment fund, and find an affordable apartment for the family. Given scenarios such as the example above, it may be useful to consider alternative types of emergency shelter for families and young men. In some situations, other partners such as the Salvation Army have provided help with housing. One option that has been pursued is to leverage money, and tap into subsidized housing. While this is a relatively new program and yet to be tested over time, options for emergency housing should be creative. For example, religious orders and nonprofits have established small sanctuary-style shelters for survivors. Again, in the case of religious orders these shelters frequently accommodate only one gender. The important requisite for these types of shelters is that those who establish and operate them be knowledgeable about human trafficking and the needs of survivors. Short-term housing can be provided in some cases by domestic violence shelters; however, most of these shelters are designed for limited stays (e.g., a maximum of 30 days). A few shelters are able to set-aside space for longer periods of time, but the number of spaces may be limited. Other options are to leverage rental subsidies, as described above. Transitional housing connected with domestic violence agencies may be available to human trafficking survivors. Again, this transitional housing is typically restricted to women and small children. Some nonprofit organizations have established transitional housing specifically for human trafficking survivors. Transitional housing may or may not be needed depending on the other resources survivors have available to them in the area or the country. In some cases, family and friends’ homes may serve as transitional housing. Long-term housing requires a search for a suitable rental unit, or a more permanent arrangement with family or friends. Survivors should be placed in locations that are affordable, which offer safety and availability of or proximity to services, and which are easily accessible

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(e.g., located near public transportation). Identifying long-term options may require case manager accompaniment and assistance in locating a particular housing unit.

§ 6.3 Social Service Providers and Case Management Social service programs for human trafficking survivors, which offer debriefing, information, accompaniment and case management, mirror those designed for domestic violence and sexual assault survivors. For this reason, the logical resource for these services is domestic violence and sexual assault agencies. These community-based nonprofits have trained case managers, who are familiar with working with survivors to find safety, to learn of resources in the community, to navigate legal processes and other systems, and to provide support and encouragement as survivors transition to their new lives. Many domestic violence and sexual assault agencies have confidential, 24-hour hotlines, which can serve as a point of contact and report survivors of human trafficking who are identified. The resources available through these programs should be evaluated carefully to ensure that they will meet the needs of human trafficking survivors. Some training on the unique needs and demands of these survivors may be helpful for whichever agency chooses to extend their services to survivors of human trafficking. Example: Brenda was identified as a survivor of human trafficking. She had many needs as assessed by her case manager. Brenda had been introduced to drugs by her trafficker, and had been forced to take drugs to deal with the horrific acts she was required to perform daily. Besides needing assistance in overcoming her addiction, Brenda had certain food restrictions, which meant finding appropriate resources for food. In some situations, case managers have created a protocol for providing case management services to survivors, in order to standardize the services provided regardless of the agency involved, as well as to serve as a training tool for new case managers working on human trafficking cases. The South Bay region is incorporating in the tasks for the Coalition coordinator the responsibility for developing and updating resource lists to assist case managers. The lists will include housing, medical, dental, mental health, legal, and other resources.

§ 6.4 Health Services: Mental, Physical, Reproductive, and Dental Health One common technique of traffickers is isolation of the workers, either through threats or with physical barriers. As part of that isolation, many survivors have little or no access to medical, reproductive, or dental care. When discovered, survivors can have infections that have been festering without adequate care. Some have wounds that have been neglected or tended poorly, and others have work-related injuries that have remained untreated. Pregnancies terminated in less than sanitary circumstances, repeated rape, and abuse can mean survivors have significant reproductive health concerns when discovered.

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Example: When Annie first arrived to her trafficker’s house as a teenager eight years ago, she had just gotten her period. She thought that her employer, an elderly woman who was her mother’s godmother, would at least provide sanitary napkins or tampons for her. Instead, her trafficker gave her five small dishrags to use for her period that she would have to wash by hand for the next eight years. Example: Maria was held for 19 years and forced to work for her traffickers, who confiscated her earnings at the end of each day. Her trafficker repeatedly raped her. One time when she tried to escape, he slit her wrist. The trafficker then stitched her wound with needle and thread, but no anesthesia or alcohol. When freed from her trafficker, Maria had numerous scars. She also had severe reproductive health problems due to the repeated rapes she endured. She needed surgery. Example: Lala was forced to work for her traffickers for over 17 years. Although they claimed to have treated her like their own daughter, Lala’s medical and dental health painted a different picture. Lala had numerous puckerings and scars on her skin and severe breathing problems from years of cleaning with toxic chemicals without protective gear. She also had never received any dental treatment, and had no fewer than five broken and rotten teeth inside her mouth. In addition to untreated medical and dental issues, many survivors suffer from depression, post-traumatic stress disorder, and other mental health concerns. Some survivors have strong ties to their traffickers similar to the “Stockholm syndrome” or suffer severe guilt in their role in punishing their trafficker through the criminal justice system. Many survivors distrust and fear everyone, including service providers who want to assist them. Other ways in which trauma manifests itself include guilt, insomnia, lack of appetite or over consumption of food, re-living the trauma repeatedly, an inability to plan for the future, and a willingness to engage in high-risk behavior. Most domestic violence and sexual assault agencies have some form of peer counseling. Centers for Survivors of Torture and similar agencies may be able to provide some mental health assessments and counseling. For dental and medical care, community health centers and nonprofit health and dental services may be able to provide services for free or through a slidingscale fee system. If agencies do not have these services in house, an alternative is to seek an empowerment fund that can be used to pay the sliding-scale fees. Establishing referral procedures and protocols with dental, medical and mental health services can facilitate smooth, effective services, especially when survivors are discovered and need immediate attention. Several considerations in selecting these services are language capacity and cultural competence. Because medical, dental, reproductive, and mental health services are very personal services that can involve taboos, preconceptions, and discomfort, these services are best provided by someone who speaks the language of the survivor and understands any cultural and religious concerns related to these services. In particular, for many clients, they may feel cultural prejudice against the idea of mental health services. Many clients are not used to receiving mental health services and view that as something reserved for “crazy” people. Where language and cultural

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capacity is limited, educating the service provider in advance is useful and will reduce stress on the survivor. Example: Jialing shook her head violently at the mere mention of “counseling” or “therapy.” Where I come from, that’s for crazy people, or maybe perverts, not for people like me. Other times, she would respond by saying that the religious faith of her upbringing taught that she needed to accept her lot in life and not seek to change it if she wanted to pursue spiritual growth. The case manager and I looked at each other. Nothing we said to Jialing would convince her otherwise of further counseling and therapy by a professional. We could not make her go see someone against her will, but her trauma was so obvious, as she would regularly wake up in the shelter from nightmares and would have uncontrollable outbursts of anger and paranoia when talking about her trafficking situation. After nine months, Jialing finally agreed to see a counselor on the condition that it was someone who spoke Mandarin and was Chinese. When she told her daughter she was seeing a therapist, her daughter even responded, “why?! It’s not like you’re crazy!” Jialing was able to say to her daughter; “actually it’s been kind of helpful. My therapist helps me think about planning for the future when you and your dad come here to join me in the United States instead of all of the bad stuff that’s happened to me. I think people in China would benefit generally from more of these services being available.”

§ 6.5 Legal: Criminal, Civil, Immigration, and Employment Rights Legal services required by survivors of human trafficking can vary. Noncitizen survivors will most likely need the services of an immigration attorney. Not all nonprofit immigration legal services offices are trained and/or funded to represent survivors of human trafficking. Because these cases are time intensive, the process of representing these clients is unique, and the survivors rarely have the resources to pay for an attorney. These services are usually provided by a small number of nonprofit immigration legal services offices, civil clinical programs through law schools, and occasionally pro bono attorneys through large law firms. Survivors who provided labor without fair payment for their work may be entitled to wages, overtime, and break compensation, and thus may want the assistance of an employment rights attorney. For some survivors who have other claims against the traffickers, including pain and suffering for injuries sustained, the best option is to pursue civil remedies. One option is through pursuing wage and hour administrative claims, and another is through civil litigation. Civil attorneys can often present civil tort claims in conjunction with wage and hour claims. The difference in wage and hour administrative claims and civil claims is extent of relief available, forum for seeking the relief, the time involved in preparing and presenting the claim, among others. Some pro bono attorneys and civil clinical programs through law schools offer assistance with wage and hour claims, and/or civil claims. Again, services which are free and where the attorneys have time to dedicate to the cases are preferred. In the case of civil remedies, some private attorneys will represent survivors for a percentage of the damages award. In this last

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alternative, the lower the percentage the attorney takes in fees, the better for the survivor. If your client is referred to an attorney or firm that is going to take a percentage of the client’s overall award, you want to make sure that this is explained clearly and repeatedly to the client. No one likes to be surprised by what they perceive to be a “back-end” fee, even if it is not. Some law firms are willing to take civil cases pro bono. Note that many big law firms will not take the case if it is pitched as an employment rights case due to perceived conflicts with their defense side employment work. It is usually better to emphasize that it is a trafficking case, and therefore a human and civil rights violation case. If the client is mentally stable and willing enough to engage in civil litigation, the client can secure a pro bono civil attorney to file a civil case in a timely fashion, and if the traffickers have assets in the country, a civil suit may be a more desirable option for greater legal relief. Civil attorneys can often present civil tort claims (e.g., battery, negligence, false imprisonment) in conjunction with wage and hour claims, as well as any necessary injunctive relief. In these cases, civil litigation can wield higher amounts of monetary relief and damages than wage and hour administrative claims because restitution, compensatory, and even punitive damages can also be requested. Civil attorneys can also advocate for higher restitution awards with the prosecutor and judge in the criminal case by calculating estimates of a client’s labor and due wages, as well as medical expenses, etc. In other cases, civil attorneys can negotiate a global settlement to finalize both the criminal and civil plea settlement for the client with defendants who are looking to do a plea bargain with the prosecutor. Once again, services which are free and where the attorneys have time to dedicate to the cases are preferred. In the case of civil remedies, some private attorneys will represent survivors for a percentage of the damages award. Again, in this last alternative, the lower the percentage the attorney takes in fees, the better situation for the survivor. For those survivors arrested during a law enforcement action, criminal defense attorneys are essential. In cases where traffickers are forcing workers to perform illegal acts, for example commercial sex work and/or sale of drugs, the workers can be arrested if the law enforcement agencies are not aware or informed about human trafficking. In this case, it is crucial that defense attorneys knowledgeable about human trafficking provide services to the survivors. As previously discussed, legal service agencies, law school clinical programs, and pro bono attorneys are often the best resource for providing these services.

§ 6.6 New Partners/Changing Personnel in Coalitions and Task Forces Some challenges more common to existing/established Coalitions/Task Forces arise when incorporating outside agencies (unaffiliated or affiliated with other Task Forces) on joint operations on cases. Similar challenges occur due to turnover in personnel in member agencies. These challenges principally revolve around training new agencies or personnel on existing protocols and practices of the Coalition/Task Force. Without procedures for explaining protocols and practices and obtaining the buy-in from these new comers, it is possible that operations can fall apart at the last minute. When team members need to stay focused on their individual roles, the common understandings and expectations of members and their roles must

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be a set factor. There will be plenty else that is in flux and uncertain. It is not possible in the chaos of operations, to stop and explain existing protocols and to hope to get buy-in. Thus, all operations anticipating a cross Task Force response should, if time permits, iron out and clarify what protocols and procedures will guide the team. Example: An LEA operation planned and conducted by agencies from Task Force A and Task Force B resulted in miscommunication and great chaos. The protocols for involving victim service providers within Task Force B and the relationships and trust built during years of meetings were not discussed nor agreed to with Task Force A personnel. Victim services providers were not allowed access to victims until the situation started to deteriorate, and roles of the LEA’s, in terms of the victims, did not appear to be clearly established among the Task Force A and Task Force B agencies—at least from the victim services providers’ perspective. Unfortunately, bruised feelings prevented any meaningful debrief after the event. Similarly, turn over in personnel shifts the dynamics in existing Coalitions and Task Forces. With each change, the teams need time to train the new personnel in existing policies and procedures. There may also be a shift in interests, personalities, priorities, and perspectives that the new personnel may bring to the table. While new people re-energize the team and bring fresh new ideas, it will take some time for the team members to once again know each other instinctively and trust each other implicitly—like teetering on a high beam before regaining one’s balance. This process is essential and should begin as much as possible before the team becomes involved with survivors and cases.

§ 6.7 Government Entities Government entities serve not only as first responders reporting suspected cases of human trafficking, but also as service providers assisting survivors. In both the San Francisco and South Bay region, local building inspectors, as well as federal wage and hour investigators have stumbled upon suspected cases of human trafficking. Building inspectors often have access to dwellings where workers are being held, and while they may not always see the workers themselves they may notice indicators of large numbers of residents in a small unit or residence in a portion of the building not normally used for habitation. Labor violations investigators have the power to inspect employment records without the need for a warrant, unlike law enforcement. As such, these inspectors may spot suspicious records and report their findings to law enforcement. Child Protective Services Child Protective Services (CPS) becomes involved in cases where there is suspected child abuse or neglect. These services may be called by law enforcement if an action occurs where there are minors present. When working with CPS, it is important to remember that their primary responsibility is the safety and well-being of the child. CPS may decide to separate a child from

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his or her parent, even when the parent has also been trafficked. Separation of families can prove extremely detrimental and may confirm threats made by traffickers. Conversely, untrained CPS workers may not understand trafficking and may try to reunite a child with an adult relative, although the relative was the child’s trafficker. Collaboration with Child Protective Services (CPS) on cases involving minor survivors can be both productive and challenging. It is worthwhile to include CPS staff in trainings on human trafficking and working with human trafficking survivors. CPS will frequently have cases of human trafficking in their caseload, and having CPS at the table, aware of the Task Force protocols, is beneficial. CPS can also take a role in protecting minors and finding foster care for minors if needed.

NOTE: For foreign national minor survivors, the Unaccompanied Minor Refugee (URM) program may be more equipped to provide support services and foster care programs. Collaboration with the URM program is discussed more in depth below.] However, U.S. citizen minors and some foreign national minors who are already in the system can benefit from CPS staff that understand human trafficking and are involved with other agencies on this issue.

As with any collaborative efforts, it is important to know the individuals in the agency and the agency philosophy and procedures. CPS is designed and tasked with protecting the best interest of the child. The best interest of the child is a subjective determination that may be decided differently by various CPS offices and staff. Example: At a training, CPS staff was presented with the scenario of a mother and minor child trafficked to the United States by a wealthy family and forced to live in a shed in the backyard. The shed could be locked from the outside. The mother is being forced to provide domestic service to the wealthy family. Law enforcement is alerted by a neighbor, and after asking to speak with and interviewing the head of the family, requests to see the house. On touring the house, law enforcement becomes aware of the shed and becomes suspicious. At this point, knowing the existence of the mother and child and the possibility of trafficking, law enforcement must decide how to proceed. In these training scenarios with representatives of various agencies, CPS staff state that their agency could remove the child from the home. Victims’ service providers/case managers protest that the mother is equally a victim, that separating her from her child would only victimize her more, and that they should not be separated unless the mother posed a threat to the child. CPS staff responds that in the best interest of the child, they need to remove the child because of the mother’s failure to protect the child. It is a difference of philosophy, roles, and perspective. Understanding each other’s role and philosophy is important for effective collaboration. Given differences, ironing out protocols and working through scenarios is crucial to avoid doing more harm than good when survivors of human trafficking are discovered.

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Alternatively, CPS may choose not to assist or may in fact obstruct efforts to assist minor survivors of human trafficking if the agency has not worked closely with other agencies on issues of human trafficking and have not participated in drafting and/or agreed to the protocols established. This situation can be equally disastrous for the human trafficking survivors. Example: I arrived to the hospital to the meet Felix, the 14-year old trafficking survivor that had been referred to me by Felipe’s pediatrician. Three days later, we were informed that CPS was insistent on taking him to a group home. None of the CPS workers would speak to me about his case, citing that all of his legal concerns would be handled by a court-ordered attorney that works with minors, and they would speak to no one else. I tried to convince them that Felix had warned me that he was desperate to keep working to earn money for his family, and that he would run away from any group home he was sent to. I asked Felix to give me time, that I was applying for him to enter the URM program and receive some financial assistance to address those issues. On my way down to the hospital to see Felix, the pediatrician ward’s social worker told me that CPS had come to the hospital and very forcibly pulled Felix out to the group home, and that the pediatrician was very upset that final vaccinations had not even been administered before CPS took him with them. I tried to speak to CPS, but again, they were disinterested in talking to me, and said that Felix’s parents had been contacted and were willing to take him back. All of my explanations of his rights as a trafficking victim and potential ability to bring his family to the United States with him fell on deaf ears. They just wanted to send him back to Mexico because his parents had said they would take him back. I asked if they could at least relocate him to a closer group home to my office, and they declined, citing no real reason. I spoke to Felix, and he was angry with me, asking why I let CPS take him to the group home, which was located three hours away from my office. I tried to explain to him, and he reiterated that he could not stay at the group home because he was not earning money to help his family. Meanwhile, the Department of Health and Human Services still had not granted his Eligibility Letter yet to place him in the URM program. Two days later, the group home case worker called me to let me know that Felix had run away. State Department Overseeing Social Services In California, public benefits are available to survivors of human trafficking from the point of identification until federal public benefits are triggered. Social services for survivors are vital, since these services help stabilize and support them until they are authorized to work in the United States. California’s Department of Social Services is a large entity and much of its work is siloed. Thus, one department may not know what the other department is doing or may not effectively communicate across departments. For this reason case managers need to accompany and advocate for survivors who seek these benefits. Example: Brenda needed assistance navigating the Department of Social Services (DSS) in order to first receive California benefits for human trafficking survivors, and later federal benefits. Brenda’s case manager soon discovered that due to DSS’ practice of “banking” cases, Brenda never saw the same social worker when she went to DSS.

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Brenda’s case was classified under “refugee benefits” because DSS in California does not yet have a separate classification for human trafficking, although services for human trafficking survivors do not mirror exactly those for refugees. The workers that were handed Brenda’s file often did not understand human trafficking, and so there was much confusion regarding what services if any Brenda was entitled to. This meant that Brenda’s case manager needed to accompany Brenda repeatedly to DSS, often in fruitless efforts to obtain the services Brenda had a right to under California law. Case managers with both the San Francisco and South Bay Coalition have been working extensively with the Social Services offices in our region. Some procedures have been tentatively established to allow one case worker to retain the file of a human trafficking survivor throughout the benefits application and provision process. This means workers trained on these types of cases will stay with the files, and will be more familiar with the survivors and their situations. Supervisors have also requested a case manager liaison to facilitate communication.

§ 6.8 Collaboration with International Office of Migration (IOM) One of the great resources available to survivors of human trafficking with derivative minors living abroad is the International Organization for Migration (IOM).17 The first step in working with IOM is to complete their forms. See their website at www.iom.int. You may want to verify you have the current versions of their forms. These forms are forwarded to IOM with a request for assistance, specifying what services are needed. IOM can assist derivatives obtain passports in their country, schedule consular/embassy appointments, complete consular forms, book flights to the United States, and accompany minors on the flights to the United States. Frequently, IOM will request copies of the T-3 or T-5 visa approval notices and in some cases power of attorney from the parent in the United States to advocate on behalf of the minor. IOM has staff in many countries from which human traffickers originate, so the staff are able to facilitate activities on the ground and investigate legal issues or help negotiate consular delays, as they arise. Your office will serve as the liaison between IOM and your client. IOM will keep you (and through you, your client) in the loop regarding progress and issues via email. Example: Tina and her brother Sam were granted T-1 and T-5 visas respectively. After completing and submitting the forms to IOM, IOM requested a copy of the T-5 approval notice. IOM staff in China contacted the parents of Sam and Tina, helped them get a passport for Sam, and arranged an appointment with the U.S. Embassy. At the appointment, despite that the birth certificates and family registration records were submitted, the consular officer asked for DNA proof that Sam and Tina were related. IOM communicated that information to the attorney’s office. The attorney arranged with a DNA company to collect DNA for her client and the client’s derivative brother and her mother in China. The DNA results established the client and her brother were related. These results were sent to the U.S. Embassy. After repeated inquiries to the Embassy

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The current contact for IOM on human trafficking matters is Mariana Rendon ([email protected]).

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about the status of the case, the attorney contacted IOM, which was able to call the Embassy and ask for the case to be sent back to the consular officer. Finally, Sam was issued his visa. IOM arranged Sam’s flight, in coordination with the attorney’s office, Tina, and the local URM (Unaccompanied Refugee Minor) program. URM successfully requested and received a designation letter of Eligibility for Sam so that he would receive support services from URM, as his sister had. IOM staff accompanied Sam to the United States to be reunited with Tina. The expenses were covered under IOM’s grant funds.

NOTE: It is important that you speak with your client in advance and let IOM know which services are needed, as soon as you know that the derivative visa(s) has (have) been approved. Occasionally, IOM has a full case load, and your clients may need to go on a wait list for services. So the sooner you advise IOM of your interest in their services the better.

§ 6.9 Working with Consular Offices and Embassies Working with consulates and embassies on trafficking cases can be very complicated. Good relationships with consulates and embassies may mean extra support for your clients for their housing and other needs. Some may go out of their way to waive fees and help your client obtain new passports, birth certificates, and other important documents. Trained consular officials may even identify trafficking cases and refer them to your office for assistance. They may provide interpreters and translators to assist with your case. However, interests of consulates and embassies may also conflict with your case. Sometimes employees of consulates and embassies have been known to traffic domestic servants on A3 and G5 visas. Other times, consulates and embassies come into contact with trafficking survivors who are not apprised of their rights in the United States, and so are sent back to their country of origin with the consulate or embassy’s assistance. Sometimes, consular officials express great interest in the case, but in the course of conducting their own investigation, may reinterview your client. Be aware of your client’s feelings towards interacting with officials from their home country’s government. They may have distrustful feelings towards officials of their own government due to past experiences.

§ 6.10 Language and Culture Language and cultural competence are vital when working with survivors. Frequently traffickers come from the same communities as the people they bring to the United States. Thus, the traffickers speak the same language and know the cultural assumptions and perceptions of the survivors. Survivors are told may also have difficulty expressing what has been happening to

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them due to their perceived inability to properly express themselves and their complex story to someone who understands not only their language, but their cultural norms. Example: The social worker had been talking to Angelina for six months over the crisis line. Angelina was a repeat caller to the shelter, usually talking about depression and how she was unhappy with her job. The social worker continued to encourage Angelina to come to the shelter or meet with a legal advocate to find out about her rights. Angelina finally called the legal advocate’s office. After the initial intake, she started to feel unsafe again. Although the lawyer seemed nice, she wasn’t sure that the lawyer really understood what she was saying over the telephone. Angelina spoke some English, but she felt most comfortable speaking in her native tongue, Tagalog, and when they spoke in English, there was so much more that she wanted to say that she couldn’t. When the lawyer called her back to meet in person, Angelina felt unsure, and didn’t pick up or call back. She wasn’t sure who to trust anymore—it was trusting too much that got her into this situation to begin with. Angelina also stopped calling the shelter and felt even more hopeless. Over another two months, Angelina met a registered nurse who was inspecting the facility she was working in. She seemed kind and asked Angelina why she seemed so scared and sick, and why she never seemed to leave the facility. The nurse helped Angelina call the attorney’s office again, this time asking specifically for a female, Tagalog-speaker to talk with Angelina over the telephone. Finally, the lawyer called Angelina back with a female, Tagalog-speaking law clerk, and together, they made Angelina feel safe to talk about the sexual assault and all the bad things that were happening to her. She came up with a plan with the social worker, nurse, and lawyer to sneak away to the shelter and then come meet with the lawyer and her law clerk. In order to understand and communicate effectively, establishing language interpreters and persons familiar with the culture are vital. Interpreters should have some training in working with survivors of traumatic events. Finding interpreters trained in working with domestic violence or sexual assault agencies is helpful, since these interpreters will have training working with survivors, and will be less likely to be judgmental of the survivor. In the South Bay region, one of the domestic violence agencies runs a language bank with volunteers who speak approximately 50 languages. In the San Francisco area, one domestic violence shelter, named the Asian Women’s Shelter, provides a model linguistic and cultural support network comprised of volunteers who have all undergone a sixty-hour training which includes training on sexual assault, domestic violence, and human trafficking, as well as the proper role of an interpreter versus an advocate versus an attorney and more.18 In-house capacity is desirable, but given the diversity of languages and the obscurity of some languages, having access to a language bank is important. It is important to keep in mind that language proficiency is not synonymous with cultural proficiency. An interpreter or translator may be able to competently communicate linguistically

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For more information, visit: www.sfaws.org/programs/direct-services/language-access.aspx.

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with a survivor but that linguistic competency does not guarantee cultural expertise. One can speak the same language without understanding the cultural background of another individual. It is important to assume that even for common languages like Spanish, slang, colloquialisms, and cultural implications can mean different things for different people. This point is significant because the experiences of the trafficking survivor are processed partly through the survivor’s worldview, which is informed by his or her personal background, which includes their cultural background. Without comprehending that cultural background, the significance of certain acts or behavior may not be fully understood. Example: Alicia was being interviewed by the FBI. They kept asking her why she didn’t leave her employer. They also kept asking what made her afraid of leaving when she tried to explain her terror at the idea of an attempt to escape. Your employer never yelled or screamed or hit you, right Alice? So why do you keep saying that you were afraid and could not leave? Finally, Alice’s interpreter told her advocate that she needed some help. The interpreter told Alice’s attorney that Alice kept using a strange sound to describe how her employer would reprimand her and that the interpreter did not understand what this sound meant. The next day, Alice’s attorney found a local teacher who was from the same region in West Africa as Alice and asked the teacher about this sound. The teacher was shocked and looked offended when he heard the sound and explained that this sound was the equivalent of the most highly offensive profanity that a person in the United States could imagine. He went on to describe the result of making such a sound: if a woman actually directed this sound at a man, the man would be within his rights to kill her for such disrespect and offense. If someone made this sound and directed it against you, he explained, you would be afraid, very afraid. Other common mistakes include assuming that linguistic competency is equivalent to cultural understanding, and discounting for variances in language usage across regions (e.g., speakers using different terms in Spanish for the same word in Mexico, Puerto Rico, Chile, etc.) For some individuals, language can also be a form of perceived oppression for historical and cultural reasons. This can be particularly true with individuals from indigenous backgrounds who were forced to adapt and adhere to speaking other languages. Make sure to check with the individual what language they feel most comfortable and expressive with, and don’t assume just because they can speak a major language like Spanish or Mandarin that it may be their original or language of choice. Prior to working with an interpreter, the legal advocate should screen and question him or her about any conflict of interest, since in small communities the interpreters may personally know or have some connection with the traffickers. Finding a trained, unbiased interpreter in a small community may be a challenge. Given the importance of clear communication for building trust and for obtaining a thorough account of the trafficking incident, building language and cultural resources is essential. Clarify with the interpreter in advance to the interview. Will the interview be done in simultaneous or consecutive interpretation? For legal work, precise interpretation, and not mere

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paraphrasing is also important, and this concept must be conveyed to the interpreter. Remember that the relationship between you and the client is the most important relationship, and while having a consistent interpreter may assist with the work and relationship, your relationship with the client must survive a change in interpreters. For those reasons, it is important to speak directly to the client, use first person terms, arrange seating arrangements (to allow constant eye contact between you and the client) and refrain from engaging in too much side conversation with the interpreter in front of the client. Consult with the interpreter in advance to arrive at the approximate length of verbal communication for them to interpret so that they are comfortable, ensure that the interview is not “too fast,” or the information is not improperly interpreted and/or lost. If the interpreter is experiencing difficulty interpreting complex legal terms, think about whether or not your client would understand those legal terms in English anyway, and consider using laymen’s terms to break down complicated concepts for clients.

§ 6.11 Funds for Necessities Empowerment funds are important in providing services to survivors. Some survivors may want to call family members as soon as possible, since they have had limited or no contact for years. Letting family members know that the survivor is safe is extremely important to the survivor. Money from empowerment funds can be used to purchase calling cards to facilitate these phone calls. Empowerment funds can be used to buy public transportation passes, thus allowing the survivor to be mobile and more independent. One source of empowerment funds could be obtained through the money available through the FBI Victim Assistance programs. Another model is to build empowerment funds into budgets for grants to serve survivors. A nonprofit agency could be designated to collect individual donations. Many donors would prefer to give money to meet a direct need of the survivor. Empowerment funds are excellent recipients of these donations, especially if the donations are tax-deductible. Your agency or coalition may also want to establish a discretionary funds account that can be drawn upon for other needs that a survivor might have, which would be otherwise financially unsupportable. For example, we have had survivors who were cigarette smokers and were desperate for cigarettes, especially during the emergency and crisis stages of their cases. It is the rare service provider that has funds from any foundation, municipal, or other source that could be used to purchase an item like cigarettes for its clients. And regardless of any personal opinion about cigarettes or cigarette smoking, the reality was that the survivors were addicted to nicotine. They could not sit still, let alone concentrate or cooperate, without some form of nicotine in their systems. Law enforcement interviews were close to impossible for these survivors to participate in and the information they were able to provide was minimal because of their lack of focus and overall jitteriness. In a situation like this one, emergency funds were provided to each survivor and they were able to exercise their own free will when it came to how to spend their allowance. Some probably did buy cigarettes and others may have spent their money in different ways. But you will inevitably encounter situations where you, your colleagues, or your client will need funds for some purpose that is not currently supported by

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existing grants or funds. If you can plan for this before it happens, you will save yourself an enormous amount of stress.

§ 6.12 Continuing Communication and Development of Working Relationship Developing relationships with key partners and creating clear channels of communication are essential to effectively identify and serve survivors of human trafficking. Initially, it is important to create a list of the core resources and services required. The first opportunities to gather these key partners can take the form of a meeting, training, or some other kind of event. Through networking and discussions, communication and relationships begin to form. Developing relationships take time, trust, and a common goal. Once resources are identified and relationships with key agencies have been established, the challenge is keeping stakeholders at the table. Regular meetings can facilitate opportunities to share information, update each other on events, and set goals and evaluate efforts of the collaborative. One useful activity in these meetings, at least initially, is to have each partner educate the others on their role and responsibilities within the human trafficking arena. Becoming familiar with each other’s duties, perceptions, and limitations, produces more effective and transparent communication. In time, the core partners can begin to expand to include other resources and partners, as needed. A list of resources can be created and updated, so that the partners are familiar with the variety of services available to meet the needs of survivors. Forming a coalition or task force with an executive board and working groups helps to stabilize and formalize the relationships. As part of creating structure, the group may want to establish protocols. List serves, websites, and wikis can facilitate communication within the group as well as between the group and the wider community.

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CHAPTER 7 PRACTICAL CHALLENGES IN A TRAFFICKING CASE

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This chapter includes: Establishing Baseline Protocols for the Team .................................................... 7-1 Law Enforcement: Role, Goal, and Limits ......................................................... 7-4 Request for the Client’s Declaration .................................................................. 7-6 Interviews with Law Enforcement ..................................................................... 7-8 Housing ............................................................................................................ 7-11 Case Management ............................................................................................ 7-13 Health Services ................................................................................................. 7-14 Legal ................................................................................................................. 7-15 Government Agencies ...................................................................................... 7-17 Language and Culture ...................................................................................... 7-18 Funders ............................................................................................................. 7-19 Conflicts of Interest .......................................................................................... 7-20 Information Keeping and Sharing .................................................................... 7-31 Safety Concerns (Client/Agency Personnel) .................................................... 7-38

§ 7.1 Establishing Baseline Protocols for the Team As briefly mentioned earlier, one of the many unique characteristics of working on a human trafficking case is the diversity and number of agencies and persons that will play a role in any one case. A human trafficking survivor is a person who will have cross-disciplinary needs that will make contact and collaboration with traditional and non-traditional partners inevitable. However, it is important to keep in mind that each entity has a specific role to play, each entity may have its own objectives and interests that are not synchronized necessarily with yours or those of your legal goals or of your client, and, that regardless of these potential differences, you must have established protocols for your team’s internal and external use in order to effectively deal with these unique circumstances. With so many players involved, it can be messy, confusing, and potentially detrimental to your client’s best interests if you do not have a set of “rules” to guide you as you work on your client’s case. These protocols or rules enhance the seamless provision of services, and ensure consistent information and messages are given to your client. Because his or her trust has been violated in the past, it is vital that all members of the team working on the case are providing the same information to the survivor and are not making promises unless those promises can be kept.

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Establishing and Enforcing Criteria for Case/Client Selection and Referral Establishing criteria for case/client selection and referral and sticking to those criteria can be challenging, especially when the legal resources available for representation of human trafficking survivors is so limited. Enforcement of criteria can also be a challenge when Task Force/Coalition partners request assistance with a case, and it would further the working relationship to assist with the case. The reality, however, is that in spite of and because of the dearth of resources for legal representation of human trafficking survivors, the few agencies that are equipped to provide this representation can become overwhelmed quickly with the requests for assistance. Competent representation means knowing the limits of the agency to represent survivors. The criteria for selection of cases will reflect the resources available to the agency. Decisions about whether to represent a survivor in removal proceedings or with prior orders of removal will depend on the capacity of the agency to do removal defense, and the time to undertake these more complex cases. Additional criteria might include representing survivors with criminal convictions, such as domestic violence or child abuse, that conflict with the underlying mission and purpose of the agency. Some criteria may address the numbers of cases that the agency can represent, especially if the agency is also committed (through grants or its mission) to other tasks such as representation of political asylees, victims of domestic violence, or in the case of law school clinical programs, the dual mission to teach law students. All of these factors can inform the criteria the agency establishes. In addition, the agency may need to give priority to referrals from members of its Task Force or Coalition, from agencies in or near its geographical location, and to cases involving vulnerable survivors, such as minors. The important step is to create the criteria before becoming inundated by requests for assistance, and creating a good referral system for cases that need assistance but do not fit the criteria so that your agency does not feel obligated to take cases outside of your criteria. Clarifying Roles/Expectations with Clients to Avoid Entitlement or Untenable Expectations Managing expectations or everyone’s roles and responsibilities begins with the legal advocate/representative. In advance of accepting any human trafficking client(s), the legal representative in conjunction with her team, should determine the scope and nature of the services she/they can provide. For example, if the client is in detention or in a shelter, how far is the representative willing to commute to meet with her client and be present at LEA interviews? Can the agency cover the cost of gas and mileage? What are the demands of her remaining caseload and will these cases be impacted by the travel time? Besides the time required for specific legal services agreed to, will the legal representative and her team be available to work with victims’ advocates and LEA when and if the client is fragile/suicidal or if the client keeps getting arrested? It is important to make clear the role of each team member and the limits to the services offered. For example, in our haste to support the victim we have explained limits to funds available to assist the victim to the service providers and victims themselves—e.g., emergency shelter for 90 days—not indefinitely; first month rent and deposit only, but not ongoing rent;

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emergency mental health services, but limited continuing mental health counseling; realistic time for adjudication of continued presence and T visas; and limits to legal representation. If these limits are not adequately explained, the team and the survivor become frustrated down the road when expectations cannot be met.

In another case, some human trafficking survivors, who had moved out of state, were requested to appear to sign for some immigration documents. The clients asked their legal provider for assistance in calling and rescheduling a traffic court matter, and when the office advised that the clients should make that call themselves, the clients became upset. Again, clarity as to the scope and extent of legal services provided at the outset is helpful. Finally, the same can be said of team members which, for example, may expect service providers to house survivors for much longer than is feasible, or which assume that all team members are on call at all hours. In order to avoid misunderstandings and frustration, clarity about capacity is essential. When survivors are provided with many layers of services, it is possible for some clients this creates a sense of entitlement. To minimize frustration at a latter point, clarity about roles and limitations is vital. It is also vital to clarify your scope of legal representation. Clients are already confused enough about the different legal processes as is. Because many conflicts of interests, complex legal difficulties, and grant difficulties may arise, it may be wise to break apart your scope of legal representation into understandable pieces for the social service providers and clients to understand. Example: My client was angry and upset, but more hurt than anything, feeling abandoned and misled. “I thought you were also going to help me apply for a green card—that’s what my case manager told me. And now you are also not going to help me with getting back my wages from my new employer? I thought you said you were going to help me!” I had been helping my client occasionally with ancillary legal questions to her case—advice on housing issues, benefits, etc. However, she started to rely on me for everything and was frustrated with the many legal issues she had to deal with. Later, I

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Example: One human trafficking client became used to the support services and promises of assistance given to her by the victim services and legal services providers. On one occasion after having received her T visa and work authorization, when requested to attend an appointment at the offices of the legal services provider to complete some documents for her derivative son, the client announced she had no money for gas to return home and asked for assistance with the gas. At the time the legal services provider had no funds to provide the gas money and so a staff member provided her with assistance. At the next appointment when her vehicle broke down en route and she needed assistance to tow her vehicle, the legal services office felt it necessary to draw the line and advise the client she would need to take care of that herself. This position caused some initial strain, because the limits to support services and assistance had not been delineated clearly from the beginning.

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talked to the case manager, and we developed a new agreement for the next client we worked with together. This time around, I made it clear that this agreement for my work was only for the T-visa. I made it clear that any other kind of legal work, including an adjustment of status, would be another agreement, and we could talk about those terms for a separate agreement later if appropriate.

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Empower the clients by making them part of the team with increasing responsibilities for their lives and their legal case. And be very clear at all times what you and your agency can and cannot do.

§ 7.2 Law Enforcement: Role, Goal, and Limits In a human trafficking case, the primary role of law enforcement, whether it is local, state, or federal, is the investigation of possible human trafficking or human trafficking-related criminal activity and the prosecution of the perpetrators involved. For law enforcement, it is critical for witnesses, victims, and suspects to be identified, and it is the primary interest for law enforcement to obtain, preserve, and protect evidence related to the crime. Their ultimate goal is to successfully prosecute the criminal actors. Therefore, to law enforcement your client is not only a survivor of grave human rights abuses; your client is also a witness to a crime with key information and evidence that may be useful in helping law enforcement successfully achieve its ultimate goal. Human trafficking survivors’ advocates have at times disagreed with law enforcement regarding whether or not an individual is in fact a victim of human trafficking and this difference of opinion and interpretation of the law can result in very different treatment for an individual who is not readily identified by law enforcement as a victim. While law enforcement may espouse and strive to use a “victim-centered approach,” their definition and understanding of what this approach entails may differ from that of a legal services or social services provider. Cooperation is another word that may be defined by law enforcement in a very different manner than you would define it. Discussing these terms with your law enforcement partners may facilitate clearer communication between you, but ultimately you and your law enforcement partners may agree to respectfully disagree on some definitions. You should also remember that the capacity and the political will to pursue human trafficking cases may vary greatly between different law enforcement agencies. Law enforcement agencies also operate within strict legal and constitutional parameters, which may not be applicable to your sphere and you need to understand those limits to set realistic expectations for your client regarding what law enforcement can and cannot do for him or her. Example: It was the third consecutive day that Dede had been interviewed by the U.S. Attorney’s office. Each day, she had arrived by 8am with her immigration lawyer and her shelter case manager. By 9am, she was sitting in a room with an FBI agent, a government attorney, an immigration officer, and several other official and seriouslooking men and women who had complicated jobs and titles that she couldn’t remember. For the next eight hours, she would answer question after question with a short break for lunch. When she had rubbed her eyes and complained about her exhaustion at the end of

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day three, one man had pointed at her sternly and told her that “she should be eating, breathing, and sleeping this case” to help the government that was helping her in return. Then another person had ended the interview and the government attorney had said that no one expected her to do that, that they knew and appreciated that she was a victim of serious and terrible crimes and not just a witness for the government.

Law enforcement’s perception of legal and social services providers varies depending on the agency, the officer/agent, and any pre-existing relationships formed through coalition and task force work. Some law enforcement agencies view legal and social services providers as essential, equal partners in human trafficking cases, while others view legal and social services advocates as bothersome, untrustworthy, or inferior partners. For the sake of your clients, it is helpful to attempt to build respectful, professional relationships with your law enforcement partners where possible. One practice worth noting is to never, ever, promise law enforcement anything that you cannot deliver. This may seem to be an unnecessary reminder, but trafficking cases are high pressure and high stakes situations. It can be extremely difficult to say no when you grasp how important a task it is that you are being asked to accomplish, whether it is the government or your client or one of your colleagues who is doing the asking. When there is limited funding at stake and several agencies are vying for the same pool of funds, it can also create a situation where true capacity, services, and skills are overblown in order to, in some opinions, stay competitive for that funding. But in the case of law enforcement, it is even more important to remember that they may have very little or no idea about what you can realistically provide other than what they hope and assume you can deliver. Therefore, it is key to be clear and upfront about your capacity and the parameters of the services that you can provide from the outset and to never promise more than what you can truly do. Failure to follow through can and will undermine your reputation and credibility, which can harm your agency, your work, your team, and, most importantly, your client. Unintentionally or unconsciously, law enforcement can expect and pressure advocates to divulge information, to compel victim-witnesses to behave a certain way, or to otherwise do the bidding of law enforcement for what they perceive to be for the benefit of the criminal case. Example: When I told the prosecutor that my clients did not want to testify and simply wanted to return home, the prosecutor became very agitated. He said, “Why don’t you as their attorney convince them that they need to stay in the United States so that I can help prosecute and stop these bad guys from doing this to other women?” When I said, “My clients don’t want to talk about their experience of sexual assault publicly and do not want their families to know about this.” The prosecutor replied, “Can’t you help them get immigration visas to stay here for just the next six months so they can help on this criminal case?” I replied, “My clients don’t want immigration visas or to stay in the United States. They don’t want to testify in the case.” The prosecutor, frustrated, said,

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Example: They told me that they want the address and telephone number [of the confidential shelter] where the client is being housed—should I give it to them? The case manager was wringing her hands. They can’t make me give that to them … but I should give them the information right?? They’re the FBI!

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“I’m just trying to help them and help others from being victimized and preyed on by these men in the future … I don’t understand … we rescued your clients, why can’t they just help? If they don’t testify, their trafficker will walk free and continue to do this to other people. You’re their attorney, you should be convincing them to stay here and testify!” It can be extremely difficult not to comply with requests put to you or your client by authority figures, especially those who have the power to detain, arrest, and prosecute. For example, the prosecutor of the criminal case may request that you provide a copy of your client’s immigration application forms (e.g., Form I-914 for T visas and Form I-918 for U visas) and written declaration that is part of an immigration application, prior to submission to immigration authorities. Sometimes the request is for a copy of the entire visa application. Another common request can be multiple interviews of your client at the convenience of law enforcement. While there is no simple, easy rule of thumb regarding compliance with requests like these from law enforcement, one basic guiding principle can help when forced to make these hard choices, namely to determine the pros and cons of compliance as it relates to your client’s best interests. However, as discussed in detail below, where possible, it is important to set boundaries and precedent and to assert attorney-client and work-product privilege and confidentiality where possible.

§ 7.3 Request for the Client’s Declaration While team work and sharing of information generally is important, the sharing of a client’s declaration or immigration application is not necessarily beneficial to everyone. However, it is important to note that, generally, witness statements are discoverable by criminal defendants in a criminal proceeding. Moreover, the prosecutor is under an affirmative duty to turn over any potentially exculpatory information to the criminal defendant in a criminal proceeding. Therefore, if the police or prosecutor had possession or knowledge of an existing witness statement, that statement must be turned over to a criminal defendant. While it is possible for federal law enforcement authorities to obtain copies of a visa application from U.S. Citizenship & Immigration Services (CIS), they may request that your client voluntarily hand over his or her declaration and application as well, whether to ensure that they are in full compliance with their affirmative duty to disclose potentially exculpatory information to the defense and/or to shortcut the process of requesting the official and final version from CIS. In addition, the prosecutor may take the debatable perspective that you, as the immigration advocate, are a part of the “investigative team” and therefore that he or she must provide the witness statement(s) obtained by you for purposes of the visa application to the defense. However, since it is possible for federal authorities to obtain copies of an immigration visa application from CIS once it is filed, it does not make sense for the authorities to request this information from you. Before filing, the application is considered privileged and confidential attorney-client communication and work-product. While the prosecutor may take the most conservative approach and consider you to be part of their investigative team and therefore your witness statement to be a part of what must be handed over to the defense, you do not in fact

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work for the government, including law enforcement and the prosecutor. It is crucial that you maintain a separate and distinct role, officially and unofficially, from any government or law enforcement entity in order for you to advocate effectively for your client and to avoid a situation where a defendant could point to the instances that could be perceived as collusive situations between the government and you. It is perfectly okay to respectfully decline to turn over your work product. If done professionally and respectfully, pointing to attorney-client privilege, and reminding the prosecutor of the important reasons that underlie the separation between you and the government and law enforcement, this response should not undermine the team dynamics.

Additionally, several other factors should be noted. First, applications prepared for an immigration visa application may on the surface conflict with those prepared for the criminal process, because the elements required to be established and the standards of proof differ. Thus, the focus of the information and the manner in which the information is presented will be different. Second, you may meet with the survivor earlier in the process and may prepare your application in a matter of months rather than the criminal documents which may take years to prepare. The memory of the survivor may be clearer or fuzzier closer to the time of the trafficking event. Third, trauma can affect memory, linear thought process, and ability to recount painful events. The ability of each interviewer in communicating with survivors of trauma, who may have post-traumatic stress disorder, will determine the amount of information and the details conveyed by the survivor. Statements that are made to reflect feelings may be misconstrued by the defendants as exaggeration or lying. For example, our clients will frequently state that they were never allowed to eat or have a single break, when in reality, they were maybe fed only once a day meager amounts of food and only were given five minute breaks every twelve hours. The clients may be declaring their state of mind about the events rather than reflecting minute details. Finally, the skill of the interpreter will impact the clarity and consistency of the information. Thus, complying with requests to turn over all or part of your client’s visa application can potentially subject your client to credibility challenges that would be detrimental to everyone but the trafficker(s).

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It is also important to show law enforcement that not turning over drafts of the T visa application and work product is also helpful for their criminal case. If any drafts of the T visa application or other work product are given to the prosecutor, the prosecutor’s exculpatory duty requires that the defendants also receive a copy. If the defendants obtain drafts of the T visa application and other documents that include inaccurate information or unflattering information that was purposefully corrected or excluded from the final draft, the defendants can still use this information to impeach your client. Impeaching your client can come in many ways: attacking your client’s motives, credibility, character, consistency, and memory. It may also open the door to a traumatic experience of your client being grilled and in trial. Defendants may also use drafts and compare them to the final T visa application to accuse the prosecutors of coaching the victim’s attorney and the victim witness in the case. Furthermore, all of this information becomes open and on the record, potentially hurting your client’s subsequent civil case. Thus, preventing the turnover of T visa drafts and work product to law enforcement not only protects the criminal case, but the client, as well as any civil case.

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In light of these challenges, one potential way to smooth over the situation with this request is to agree to review certain key facts with the prosecutor before submitting the T visa or U visa. Certain dates and facts that the prosecutor may want clarified can be discussed briefly over the telephone (not in writing) to ensure that you and the prosecutor have the same information about the client. Another way is to note the prosecutor’s hesitancy and concerns about facts in the case, and be sure in the declaration to pay attention to those facts to make sure that your declaration alleviates these concerns as much as possible. Is the statement exaggerated? Is the statement overstating something as a fact? Can the statement, “I worked 24 hours a day” be modified to “I felt like I was working all day long, non-stop” in a way that conveys the client’s feelings without being challenged on a word-by-word basis? Can the statement “I could not leave the house” be clarified to “My traffickers told me so many horror stories that I feared leaving the house so much that I felt like I could not leave without being kidnapped or deported” be helpful? Also think about using modifiers such as “on or about” for dates, “felt like” to convey sentiment rather than fact, and be careful from making definitive statements. All of these methods may help alleviate the prosecutor’s concerns about not being able to have an advance copy of a client’s declaration from a T visa or U visa before it is filed and may also help with a civil case. It is important to remember that the immigration proceeding and the criminal proceeding, as well as potentially a civil proceeding, can be ongoing simultaneously and that these are parallel proceedings. There is a reason that civil proceedings can be stayed as soon as a criminal proceeding ensues and that discovery and evidentiary rules are not identical in these parallel proceedings: the criminal defendant has rights protected by nothing less than the Constitution. Discovery and admission of evidence in civil proceedings is much broader. It is in light of the rights of the criminal defendant that rigorous protections are built into the criminal justice system, such as making it a criminal misdemeanor for government to release a police report to anyone but an authorized individual and for an authorized use or such as placing the burden of affirmative production of potentially exculpatory information on the prosecutor. Since these proceedings may be concurrently taking place, it is even more important that communication is crystal-clear regarding the roles of each player and the expectations that each player may have of the others. Making this clear from the outset and reaffirming this common understanding along the way helps prevent the kind of miscommunication or misunderstanding that can undermine the relationships that you have worked so hard to establish. Additionally, because of all of these concerns, social services providers should also not have possession or access to client applications and declarations. The case managers and other providers may be called as witnesses or subpoenaed in criminal and civil cases. They may be forced to turn over the document in the subpoena or worse, forced to testify from memory what they read, which may be even less accurate. For those reasons, there is no need for social services providers to have access or copies of these documents as well.

§ 7.4 Interviews with Law Enforcement Multiple interviews may depend on the amount of information your client possesses with respect to the trafficking incident, as well as whether law enforcement plans to prosecute the

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As your client’s legal advocate, you have a duty to your client. Law enforcement has a duty first and foremost to the government. It should be you who intervenes on behalf of your client. It may be that law enforcement has not considered the impact of their zealous pursuit of justice on your client. The process and format of law enforcement interviews also make a difference. Legal advocates in many areas have worked extensively with law enforcement to establish a practice of conducting law enforcement interviews in safe, familiar environments for survivors. In both the North Bay and South Bay region, the local Task Force members (San Jose Police Department officers, FBI, and Assistant U.S. Attorney) have been willing to conduct interviews in the offices of legal service providers. The client is already familiar with this office space, and it is less formal and intimidating to have interviews within this space. The legal services representatives should be present during the law enforcement interviews as a support person for the survivor. Usually it is preferred and good practice for case managers not to be present in the interviews in order to protect them from being subject to subpoena in any criminal proceeding, but attorneys would have attorney-client privilege and should be allowed in the interviews. Nonetheless, an advocate of some sort at the end of the day should accompany the client in their interview with law enforcement. At least with respect to some federal and local law enforcement officers, if at any time during the interview the client wants to speak with her attorney privately, the law enforcement officer leaves the room. This information is conveyed to the survivor at the outset of the interview. It is also preferred if local law enforcement also comes to the interviews in civilian dress and unarmed, or at least have their weapons hidden from sight. The officers let the survivor know that she is not being detained and is free to leave at any time. Further, the officers should let her know that they do not believe she has done anything wrong. These statements from the officers, as well as their invitation of questions from the survivor, tend to reduce stress and anxiety on the part of the survivor. Law enforcement is also required to provide interpretation for the interview, as typically for credibility and caseworker privilege issues legal advocates do not use the interpreters they are using for their legal case for the criminal interview. If you sense that an interpreter is not accurately interpreting the interview, is paraphrasing, or there is a great divide in cultural

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trafficker. Some cases require only one interview by law enforcement. It may be that law enforcement does not feel there is sufficient evidence to proceed with an investigation or with prosecution. [Note: In criminal proceedings the burden of proof is “beyond a reasonable doubt.”] It may be that the case is not the type of case to which law enforcement has prioritized for dedicating investigation and prosecution resources. In these cases, your client may only be interviewed one time. If the case requires multiple interviews, you might want to consider whether follow-up interviews are necessary (e.g., is a drive-by required, is there evidence that law enforcement wants your client to identify, are there photos that law enforcement want your client to identify, are there questions now that some investigation has been completed), and the impact of repeat interviews on your client (e.g., is your client feeling overwhelmed, are repeat interviews re-traumatizing your client, are the questions asked new questions or questions already asked).

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understanding, it may be important to check in with law enforcement and the client to ensure that everyone feels that the client’s story is accurately being conveyed. It is also best to inform law enforcement in advance where your client is from to find an interpreter that is most likely to speak the same language, dialect, accent, and colloquial terms as your client. Clients should never be coached to exaggerate or make false statements, and law enforcement will want to confirm the facts of the case directly from the client. Often, exaggerated statements, false statements, and incomplete information from clients stem from their fear that revealing the information will put them or someone they are trying to protect in trouble. Other times they feel that they will only be helped if they present a version of a story or of them that seems the most likeable and “innocent” to law enforcement. Sometimes, your client may just be embarrassed to talk about what happened to them or it’s something they are ashamed about. To avoid false statements to law enforcement, which can permanently damage the relationship of trust between your client and law enforcement, it is best to ask the client if they have concerns about certain facts and situations before the interview so that you can understand and allay their fears. But sometimes, prior to this first interview, if law enforcement is amenable, it may be helpful if with the client’s consent, the legal advocate can proffer some facts and information. “Bad” or “shameful” facts may therefore be acknowledged up front, and hopefully law enforcement can put the client at ease by showing no judgment despite having this information. Example: The first time I met with Kamala, she denied that she had ever had any experience doing any kind of sex work in the past in India. Over the course of three meetings, she finally admitted that she had been a sex worker due to financial stress and pressure from her parents. I explained to her that her past history did not excuse the abuse her trafficker had inflicted upon her in the United States. We talked about letting the FBI agent know in advance about her past history in sex work. Kamala finally agreed and I informed the FBI agent in advance about Kamala’s past history. The FBI agent was able to open the interview to let Kamala know that she did not judge her for her past, and merely wanted to interview her for information about how her trafficker had lied and abused Kamala in the United States. Kamala visibly relaxed some, and began talking about her story. Example: After avoiding my question multiple times, Liyuen finally admitted that she lied to the U.S. consulate in order to obtain a tourist visa to travel to the United States. She explained that her traffickers had ordered her to show false photos of someone else’s family in China and to lie that she only intended to come to the United States for vacation, and not to work. She asked me if I was angry at her or thought she was a bad person because she had lied to the U.S. consulate. I told her no, but to make sure that she explained to the ICE agent that the trafficker had instructed her to lie and had provided the false photos during the interview. Sometimes just identifying names, players, and a short outline of the facts in a chronological order will give law enforcement a roadmap and allow them to interview your client in an effective and expeditious manner. This can be particularly helpful for clients who have

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been in their trafficking situations for many years or have been trafficked by multiple people multiple times.

One practical strategy of balancing these two competing interests is to use an existing T visa declaration during law enforcement interviews and then add to that declaration any new or corrected information gleaned during the interview. This document should be considered attorney-client and work-product privileged, and should not be shown to law enforcement. Ensuring that the client’s T visa’s facts are accurate and comport with law enforcement’s understanding of the facts is important to any potential criminal case. The legal advocate should work with law enforcement to see how comfortable they are with note-taking and to weigh the pros and cons. Legal advocates, like law enforcement, should try to steer clear of taking notes that look like transcripts of the interview as if they are used in a criminal case may be treated as such. Not all law enforcement agencies are as accommodating or non-threatening. It is important that you work closely with your law enforcement agencies to let them know it is in their interest to incorporate techniques such as those mentioned above in order to have a more productive interview, but remember that these interviews are within their purview and they will conduct these interviews how they see fit. We can only make friendly suggestions. For your client, these techniques and others will mean the part of reporting and providing information to law enforcement will be less re-traumatizing.

§ 7.5 Housing Shelter providers are often run by the same service providers that provide case management and other social services. While run by the service providers, the shelters are in some ways distinct entities. It may be possible for the survivor to have a general case manager, as well as a shelter case manager. In this case, it is important that the case managers coordinate their work on behalf of the survivor and make very clear the parameters and role that each will play—who is responsible for exactly which tasks and who will be accountable for other needs. This needs to be established at the outset between the case managers, and the survivor’s legal advocate should be informed and updated as the case proceeds and if the lines that are drawn change over time.

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Different law enforcement agents address the issue of taking notes during the law enforcement interview differently. These interviews are not subject to any kind of privilege, and any notes and reports the law enforcement officer or agent writes down will be given to the trafficker as exculpatory evidence if there is a criminal case. Similarly, the legal advocate’s notes may be subject to subpoena in a criminal case. However, keep in mind that it is important for your case and your client’s interests for you to maintain accurate and updated notes on the communications between your client and law enforcement. For example, if an officer misquotes your client or has misunderstood some piece of information provided by your client, you can preempt further inaccuracies by reviewing your own notes and correcting the error.

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Emergency shelters, especially domestic violence shelters, operate under rigid rules. Confidentiality of the shelter is essential for the safety and security of all of its residents. The shelter managers will need to weigh obligations to protect the residents with the risks of housing a survivor of human trafficking. If the survivor chooses to maintain contact with the trafficker or re-establishes contact with the trafficker, the shelter may refuse to continue to house the survivor. Besides emergency shelters, you may also want to build contacts and establish relationships with other housing resources, such as transitional housing providers, especially since shelter and housing is an essential need that the survivor may have for both the short and long-term. In the San Francisco area, housing is costly, to say the least. But many survivors want to remain in San Francisco or its surrounding areas because of the ethnic community or resources that exist as well as its proximity to the survivor’s primary support network and advocates. In San Francisco, one way that we have dealt with this dynamic is to reach out to “non-traditional” shelter options such as religious organizations that have invaluable residential space available in housing affiliated with their organizations, such as the Salvation Army, a monastery or mother-house, and an interest in helping survivors of human trafficking who may not need 24 hour support and are ready for a more independent living space. Specific terms of agreement for the provision of such housing were reached in order to ensure that the unique nature of a trafficking case would be taken into account by both the survivor and the organizations providing the shelter, such as the need for confidentiality and additional security measures. Also make sure to speak to religiously affiliated organizations to ensure that your client is able to maintain religious freedom and is not pressured into partaking in the religious organization’s religious activities. Shelters often have limited bed space and may pressure you to obtain status for your client quickly in order to transition the survivor into more permanent housing. In advance of using shelter space, you may want to work with shelter providers to set aside a certain amount of bed space for longer occupancy by survivors of trafficking. If this is not possible, it may be possible to arrange a series of shelters that can house the survivor over a period of time. Being clear about the amount of time your office needs to prepare immigration applications, as well as the current processing times for CIS, will allow the service providers responsible for housing the survivor to plan ahead. Contact with your client may be more circuitous while your client is in a shelter. It may be that written communication will need to be sent to the agency’s main office address. Phone calls may need to go through the shelter office or through the case manager. Remember that as with law enforcement and the general public, you will not be provided with information about the location of the shelter. For safety reasons or for reasons of space, your client may be moved to a shelter out of the immediate geographical area. At this point, your office will need to decide if your continued representation is possible. If the case manager can transport your client to your office for appointments or if your office has the funds to travel to the survivor’s new location, then you may want to retain the case. In the case of some survivors in high-risk situations or minors in the Unaccompanied Refugee Minor (URM) program, survivors may be moved across the U.S. In these cases, it makes sense to find a community-based legal services or law school clinical program in the new location to take the case.

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§ 7.6 Case Management

The case manager is ultimately concerned about the safety of the survivor, about her mental health, and about assisting her to stabilize her life. Thus, the deadlines of the case manager may not coincide with the legal services representative. The priorities of the case manager can conflict with the priorities of the legal advocate. Case managers and legal advocates should also have a conversation to allow case managers to understand how every trafficking case can be different, and that the timing, needs, and complications of every case are different. The case manager should not offer the client legal advice or comparisons to other cases the case manager has worked on, but instead can suggest to the client that these questions be written down and raised with the legal advocate at a future meeting or over the phone. This can better ensure that legally accurate advice is provided and that the client’s concerns are being addressed in an individualized and specific way. Since the case manager is focused on meeting the physical and mental needs of the survivor, it will be the legal advocate’s responsibility to communicate with the case manager about legal filing deadlines. The case manager and you will have to work at making appointments with your client. Remember that your client will also have appointments with Social Services, appointments with medical, dental, and mental health providers, classes and job training programs, and other activities. At least initially, the case manager is coordinating all of these events that are pulling your client in many directions at once. As noted above, the case manager will be pressuring you to complete the paperwork quickly so that the survivor can be certified in order to receive federal public benefits. Note that once your client is issued Continued Presence and/or a T visa by CIS, the information is sent to Department of Health and Human Services (DHHS) where an eligibility letter (certification) is issued. With this letter, a survivor of human trafficking may process for federal public benefits. These benefits allow the survivor to transition into a more stable living situation; thus, the case manager will be pressuring for you to complete and file the T visa application. In California, state public benefits which are designed to bridge the time from identification to certification only last for eight months, so again as time progresses, the case manager will be contacting you frequently to determine the status of the visa application and certification. Specifically in California, you will also want to provide a short letter for the case manager for them to help your client obtain pre-filing T visa benefits and to maintain benefits over time. See Appendix DD: Sample Letter to Social Services. The case manager will want to protect the survivor from frequent and painful interviews with you as you document the trafficking and prepare the application. If these interviews are

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The primary responsibility of the case manager in the team is to ensure the welfare of the survivor. As such the case manager is frequently overwhelmed, since the survivor needs many services simultaneously and may be very dependent on the case manager, at least initially. While you may need the case manager’s assistance in making your client available for appointments, for transportation of your client to your office, and for assistance in obtaining documents related to your client (e.g., medical reports, counseling reports, etc.), you may find that your services are not the most urgent from the perspective of the case manager. Your requests may need to wait depending on the other needs of the survivor.

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essential, the case manager can increase mental health support for survivors during this process. The mental health of the survivor is of great importance to the case manager. The interviews you will need to conduct with your client can unintentionally force your client to re-live traumatic experiences. These appointments can be counterproductive to efforts to address mental health issues of survivors. One way to deal with this situation is to establish a system of informing both your client and the case manager in advance of any appointments that may require the survivor to recount aspects of the trafficking. If any interviews are required, such as interviews with law enforcement, you can prepare your client mentally for these interviews by providing as much information in advance about the process, types of questions, and intent. Also keeping the case manager advised of such appointments and interviews allows the case manager to check-in before and after each one in order to provide additional support to the survivor as needed. For case managers who work with domestic violence agencies, it is important to note that many do not maintain files on their clients, as you do. This practice is designed to protect the agency and survivors from subpoenas and request for production of documents. In your communications with case managers, you should retain the paper trail. Any important documents should be kept in your files. As the legal representative you will need to be the one to screen the survivor thoroughly, since you are protected by attorney-client privilege. The case manager should only ask basic preliminary questions and then refer any potential survivor to you to screen. As a rule case managers should not be present during the interviews you conduct with your clients, unless you have an agency agreement that states the case manager is an agent of your office and thus protected by your confidentiality. [See discussion of agency agreements later.] In the North Bay and South Bay region, the legal representatives have a practice of informing the case managers in advance of the approximate length of the client appointment. The case managers generally bring the survivor to the attorney’s office, at least initially until the survivor is comfortable transporting herself to the office. The case manager usually leaves or brings work and is given a separate office space during the interview. In this same vein, it is generally not a good practice to use the case manager as an interpreter. Interpreters from a language bank or inhouse interpreters are preferable. It is also important for legal advocates to be in touch with case managers to let them know when a particular interview has wreaked emotional havoc on the client and that the client may need counseling and support immediately afterwards. The case manager may raise concerns with you about any attorney’s fees collected from civil awards. Case managers may also seek your assistance finding legal representation for civil or criminal cases involving the survivor. If your office does not provide these services, it may be helpful to retain a list of referrals. Even if your office does not provide legal services other than immigration legal services, you should be aware of statutes of limitations for these claims, and make sure the case manager and survivor are aware of these deadlines. Again, remember the case manager’s role is to advocate for the safety and welfare of the survivor.

§ 7.7 Health Services Medical, dental, and mental health services are frequently required immediately upon discovery of a human trafficking survivor. These services may be provided by nonprofit

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agencies, community health centers, or through pro bono medical providers. Medical and dental services required may consist of emergency treatment, but can also involve extensive procedures. If the conditions of the survivor have gone untreated for months or years, initially, routine services may require more invasive and extended care.

When you are communicating with medical and mental health providers, remember they are bound by patient/doctor or patient/therapist confidentiality requirements. They may need written consent from your client in order to discuss your client’s medical or mental health with you. Also, medical facilities must comply with HIPAA requirements in order to release medical records or documents to you. In cases where you know you need to request documents or want to speak to medical or mental health providers, calculate enough time in advance of when you need the documents or information in light of the busy schedules of the service provider. If you need a mental health assessment for an application, for example in older cases where your client was too traumatized to file within the regulatory deadline or for U visa cases where you must establish “substantial physical or emotional abuse,” again you might want to turn to centers for survivors of torture or therapists familiar with documenting trauma for political asylum cases. These professionals will already be familiar with the immigration legal process, as well as the style of reports required.

§ 7.8 Legal The legal team serving a human trafficking survivor will vary depending on the needs and wishes of the survivor. For non-citizen survivors, most will require an immigration attorney. Generally, nonprofit attorneys have worked exclusively with trafficking survivors with the occasional assistance of pro bono attorneys from private law firms. Human trafficking cases are very time-consuming because there are so many aspects to representing a trafficking survivor as part of a larger team. Rarely will human trafficking survivors have funds to pay a private attorney, unless the trafficker hires the private attorney on behalf of the survivor. The process for representing a survivor of human trafficking is complex and does not lend itself to the casual representation. Example: Jane was trafficked into the United States to provide child care for her cousin’s daughter. Upon arriving in the United States, the cousin advised Jane that she needed to work in her cleaning business as well, in order to repay the cost of travel and housing and food in the United States. Jane’s cousin took her passport for “safekeeping,” and told Jane not to leave the house without her or the police would arrest Jane for being a foreigner. In time, Jane’s cousin began threatening Jane’s family if she did not do the

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For mental health services, sexual assault and domestic violence agencies frequently offer peer counseling and support groups. A survivor who exhibits symptoms of PTSD or severe mental health issues will need more formal therapy, preferably from a psychologist or therapist trained to work with trauma survivors. A good starting point for creating mental health referrals is centers for survivors of torture.

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cleaning work well, or if Jane complained of being tired. After a year, Jane was able to slip out of the house to go to a neighbor’s house. The neighbor tried to help Jane get resources and a place to stay. The cousin reported Jane missing and called ICE on Jane. At some point the neighbor took Jane to a community legal services office. The legal services office screened Jane and determined she was a human trafficking survivor. They also learned that she had been placed in removal proceedings for overstaying her visa. The legal services attorney told Jane to go to the local police station to report that she was a human trafficking victim. The attorney said it would help with her immigration case in court if she could get a law enforcement certification and thus a T visa. The attorney gave the survivor the law enforcement paperwork to give the police to fill out. The survivor did as she was told, and went to the police station. At the station she told the police that she wanted to report she was a victim of human trafficking and that she wanted them to fill out some paperwork because it would help with her immigration case. The police were suspicious, and while they followed up with a local Trafficking Task Force they expressed concern that Jane was just using the system to find a way to remain in the United States. Example: Niko was brought in at the age of 17 to do construction work, be a handyman, babysitter, and domestic worker for his uncle and his two young children. Although he promised him he could go to school, learn how to drive, and he would help him petition for papers, over three years, he never paid him or followed through on his promises. When he dared to complain, his uncle threatened to deport him. Niko finally found a non-profit immigration attorney experienced in U-visas. This attorney instructed him to report his case to the local police department as an incident of domestic violence and human trafficking, as he normally did with his other clients applying for U-visas. Niko went to the police station and did as told, stating that he was a victim of domestic violence and human trafficking. The police officer looked at him skeptically and asked Niko what his uncle forced him to do. Niko started by describing the amount of time he spent babysitting his uncle’s two young children and housework. The police officer cut him off short, and called ICE. ICE officers came and told Niko that his uncle had already reported that he was out of status and for threatening his children. ICE handcuffed Niko, and issued him a Notice to Appear. They all scoffed that a young man like him was forced to be a babysitter and kept asking him, “Who taught you to say that you were a human trafficking victim? Who taught you to say that so you could stay here in the United States?” Because most immigration legal representatives work as a team with law enforcement, it is rare that the attorney would send a client to local or federal law enforcement on their own to report a case of human trafficking. Instead, the attorney would contact the local or federal officer/agent on the Trafficking Task Force to report a trafficking case. The Task Force would then schedule a time to interview the survivor and determine if the case warranted follow-up on their part. At no time would the immigration legal services provider approach the Task Force with a request to complete a Law Enforcement Affidavit (LEA) until after the agent or officer had had an opportunity to interview the survivor. In some cases the agent or officer decides not to

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complete the LEA or to delay completing the LEA for reasons specific to that department’s policies or assessment of the case. For purposes of a T visa, that decision does not preclude the filing of a T visa, as discussed below.

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In the examples above, the result of the immigration legal service’s attempt to represent human trafficking survivors without knowledge of the protocol of the trafficking team would likely result in confusion on the part of law enforcement at best, or disbelief and discounting the survivor at worst. Thus, given the role of the immigration attorney as part of a team, the case of a human trafficking survivor is not a typical immigration matter.

§ 7.9 Government Agencies Government agencies that might be involved on the team include Child Protective Services (CPS), Social Services, Wage and Hour Division, and more. These entities are often very large with their own unique internal culture, structure and language. As discussed above, frequently the procedures for handling cases involve transfer of files from worker to worker. The extent of training and knowledge of human trafficking will differ from worker to worker, and from department to department. When working with government entities, you may want to establish a liaison with a manager or supervisor, who can intercede when a worker is not familiar with human trafficking, who can establish protocols and train the line workers and who can authorize internal re-organization or shifts in policy. Each government agency has its mandate and priorities. As discussed above, CPS is required to address the “best interest of the child.” Sometimes this means separating children from parents who have been trafficked into the United States. You may feel that such separation would destroy the family and severely harm one of the survivors for the safety of another. You may have to advocate for your client and her need to remain united with her children; however, generally advocacy other than legal representation would be handled by the case manager. While government agencies are helpful reporters of human trafficking given the large number of people they serve, they can be extremely slow and cumbersome when accessing their services. For this reason, if you need any document or information from government agencies, you might want to plan in advance.

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Besides the immigration attorney, the survivor might have a civil attorney, a worker’s rights attorney, and/or a criminal defense attorney. Each attorney is focused on her particular legal issues and claims. The attorneys may require the same information and similar documents, but questions arise as to how much information to share, especially if the various legal claims are handled by separate law offices. At the very least, the legal services team should be in communication on process, if authorized in writing by the survivor. Remember that only the civil attorneys can recover attorney’s fees as a percentage of the recovery of their client.

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§ 7.10 Language and Culture Interpreters are essential members of any team working on human trafficking cases of non-English speaking survivors. Interpreters should be carefully selected, because without training the interpreter may not understand the importance of interpreting everything the survivor says. Sometimes untrained interpreters will summarize, which will mean that you do not receive important information, but only those facts the interpreter chose to include. More significantly, untrained interpreters may consciously or unconsciously inflect their interpretation of your questions with tone or words that insinuate judgment on their part or yours about the character of the survivor because of the trafficking situation. As mentioned previously, in small ethnic communities an interpreter may know the trafficker or have ties to friends or family of the trafficker. Seeking interpreters from close-knit or small communities may be disastrous and may put the survivor at risk. If the interpreter pool is small, then the choices are limited. In this case, it may be helpful to use trained interpreters from that community and remind interpreters about confidentiality. As in other situations, it is preferable to avoid using family and friends as interpreters. Some family and friends may have no idea of the extent of the harm or shame the survivor endured as part of the trafficking. There are family and friends who feel they “know what’s best” or otherwise need to control the situation and speak for the survivor. Family and friends may understand the language and culture, but may again filter the information. It is not uncommon that the trafficker is a family member; thus, it would be dangerous for you to involve the family until you know more of the trafficking circumstances and the family dynamics. While neighbors may want to assist in interpreting or providing cultural context, as with family, the survivor may not want to disclose details to you in front of persons they will see frequently in the future. The motives of neighbors, as with Good Samaritans, may conflict with the goals and wishes of the survivor. While religious leaders have unique insights into culture and might speak the language, there is frequently a power dynamic between survivor and her religious leader. Religious leaders, as with interpreters, may know the traffickers, and may try to dissuade the survivor from reporting the trafficking to law enforcement. Good Samaritans frequently speak the same language as the survivor, and may offer to serve as interpreter. As with any untrained interpreter, there is a good possibility that the Good Samaritan will summarize the information, control the interview, and convey to the survivor some form of judgment of their situation. Thus, ideally you will use trained interpreters from your own office or another nonprofit. Well-trained interpreters can also help guide you with nonverbal cues, colloquialisms, religious, ethnic, and cultural insights that may not be obvious.

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Be aware of interpreting during law enforcement interviews as well, since interpreters may or may not have the requisite training. If possible, do not use the same interpreter for the law enforcement interview as you do for your work. Law enforcement interpreters are subject to subpoena during criminal proceedings, and you want to insulate your interpreters so as not to breach confidentiality. Ultimately, the main relationship to foster is between the legal advocate and case manager with the client. While maintaining a consistent interpreter is important and helpful, the relationships of trust between the client and the legal advocate and case manager should survive a change of interpreter.

§ 7.11 Funders Funders are the life blood of nonprofit agencies handling human trafficking cases. Funders have a responsibility to ensure that their money is well spent and meets the criteria agreed upon. As such, funders set specific parameters for service, require concrete goals, project timelines, and evaluation methods. Human trafficking is very prevalent, but to date remains hidden. To set goals for funders is difficult because discovery of survivors depends on successful law enforcement actions or happenstance that a non-law enforcement agency will recognize a case as human trafficking when it is encountered. With a large law enforcement action, 30 or more survivors could need immediate service, and then no survivors might surface for another four or five months. Given this uncertainty, it is important to work with funders to build flexibility into the goals and task timelines. As for evaluation, you will need to create methods for funders to audit your program without breaching confidentiality. Funders may feel comfortable with database reports that do not reveal personal information. Tracking with unique client numbers will assist funders, as well

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Example: After almost two hours, Aisha kept repeating to me how scared she was when her employer wanted to search her purse. I just didn’t understand—was there something inside the purse that Aisha wanted to hide? No. Was the purse meaningful to her in some way? No. Aisha took a bathroom break. I was puzzled and getting frustrated, knowing that I was missing a crucial piece of what Aisha was trying to convey to me. The interpreter suggested that I ask her what the consequences of having your purse searched would be and if it might have something to do with Sharia law. I didn’t quite understand immediately, but when Aisha returned, I asked, what does it mean to have your purse searched? It means that I might have something in there that shouldn’t be there. I asked, you mean, like you stole something? Aisha nodded her head. I asked, so, what happens to people who steal things? Those people, by law, get their hands cut off. I know a plaza where former servants like me beg for food without hands. It turns out all it took was for an employer to accuse a domestic servant like her of theft for there to be harsh consequences.

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as the team working on the case. It ensures the team can refer to the number without discussing personal identifying information in the context of broader coalition or task force discussions on human trafficking trends in the service region. When establishing or developing your agency’s anti-trafficking program, you should include the topic of whose responsibility it will be to maintain data and provide reports for purposes of the funders, such as grant reports or responding to evaluation questions. This can be a very time-consuming task and ideally should not be placed upon the shoulders of the same person or people who are also providing the services to survivors, although it often is. However, the reality is that many times, the service provider is the one who has the most substantive information by virtue of being the one who is at the forefront of each case and who has the most contact with survivors and collaborative partners. Moreover, there may be inadequate agency funding to support a separate position within the agency that will be in charge of these responsibilities. But there may be different variations on how to, at least, share the burden of dealing with funding data and reports, such as having the service provider provide verbal summaries and data on trafficking cases and a different person be the one responsible for the actual writing of the report or using the existing database of the agency to maintain data and collect information useable for a grant report or rotating the responsibility for drafting a report among several staff throughout the year or dividing the report into sections that different staff would be accountable for, etc. The bottom line is that you should take the time and effort to discuss this topic before proceeding so that the entire staff is aware and prepared for the additional administrative work that may ensue from funding-supported trafficking work.

§ 7.12 Conflicts of Interest As with any other legal representation, it is important to screen for and be aware of potential conflicts of interest. The conflicts can arise in various situations and are more fully discussed below. Among Team Members Each team member, whether law enforcement or service provider, frequently has both legal and political obligations and agendas. It is naïve and unrealistic to assume that team members are engaged in human trafficking work without their particular ideologies, goals, and agendas. Even so, many team members invest significant resources and efforts towards this work, evidencing dedication and commitment to identifying and serving human trafficking survivors. Legal obligations span the spectrum from mandated services to ethical obligations. For example, local law enforcement is obligated to act on tips regarding crimes in progress. For some of your clients, they may not want to report traffickers to law enforcement even though there are persons still being held by the traffickers. Your clients’ reasons may be fear for their safety or the safety of their family, or a feeling of lingering obligation to the trafficker while desiring only to get out of a difficult situation. Knowledge that others are still being held and that your client does

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not want to contact law enforcement can create a dilemma and cause stress between you and your law enforcement partners.

Example: Yani, a 24-year old woman, was very confused. Although she had run away from her employers and the nice police officer she met had taken her to the shelter, no one knew that her employers continued to contact her on Facebook, promising her that they would pay her and allow her to go home, and that they would fix everything. She also had been having vague and confusing discussions with the immigration attorney and case worker about “maybe” getting some type of immigration status a long time in the future and being unable to bring her mother over to the United States with her. The nice police officer also talked about putting her employers in jail, and that scared her—she didn’t see herself as a vengeful person like that. Yani also knew that once she left the home no one was probably taking good care of the elderly grandmother in the house, who had been relatively good to her. She begged her case manager to drop her off in front of the mall so that her employers could pick her up and send her back home. Her case manager and attorney tried to explain all the consequences to her, but Yani was insistent. It felt very similar to the case manager and attorney about counseling women who went back to their abusers—you hoped that they would at some point in time break the cycle of violence and know that there were resources available to help. The case manager dropped Yani off in front of the mall. When the law enforcement office realized that Yani had left, she was very angry, demanding to know how and why the case manager and attorney would let Yani go back to her traffickers, and that she should have been informed in advance of Yani’s drop off. Some partner agencies may have mandatory reporting requirements in cases of abuse of children. Medical service providers, among others, will have an obligation to contact CPS or law enforcement if trafficking survivors include minors. This response may create concern or strain on the team, especially if the result of a report means minors are separated from their parents. For survivors who have suffered emotional and/or physical trauma from the trafficking situation, separation from family members can intensify the harm. Political agendas will reflect the internal, as well as external, politics of each agency and the surrounding community. While human trafficking is generally considered an “evil,” many communities believe that this only happens in other locations, not within their own neighborhoods. Willful blindness to human trafficking creates tensions between those agencies addressing the issue and those which should be involved. Agencies, especially government agencies, have to be careful to avoid “stepping on the toes” of other agencies. For example, a

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Additionally, because many trafficking social services providers also have a background in providing services for domestic violence survivors, they may be likely to “allow” the victim to “return” to their trafficker as a choice. This may not be something that other agencies without the background in domestic violence work and/or law enforcement may find acceptable in a case. In these cases, working out this potential scenario in advance or informing law enforcement of parallel practices may be important—it is highly undesirable to be seen as an agency that facilitates the “disappearing” of victim-witnesses.

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situation of human trafficking comes to light through newspaper reports. The local prosecutor of a neighboring county recognizes the case as one of human trafficking, but the prosecutor of the jurisdiction involved does not and in no uncertain terms rebuffs a friendly call from the former offering technical support.

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Within large community-based agencies, the politics may be one of survival and/or growth. When decisions are made, especially financial decisions, the key agency decisionmakers are focused on what is best for the agency rather than the coalition of agencies. This can lead to strain among agencies, miscommunication, and undermining of trust. Moreover, there may be a fundamental disagreement about what human trafficking truly entails. For example, there is still a belief by some that human trafficking involves sex of some kind and that any purported trafficking that does not involve forced sex is simply a labor exploitation issue or an employment problem. Some believe that domestic trafficking, typically defined as forced prostitution that victimizes primarily U.S. national minors, is the most egregious form of human trafficking and should be the priority of U.S. policymakers, law enforcement agencies, and NGO’s, while others advocate just as vigorously on behalf of international victims of human trafficking. Many NGOs disagree as to whether or not sex work can be voluntary; changing the scope, definition, and approach to working with sex trafficking survivors. The pitfalls with legal and political agendas and conflicts of interest generally are significantly diminished levels of trust, strained communication, and disintegration of the seamless identification of and services to survivors. These pitfalls can either strengthen coalitions and task forces or destroy them, depending on how they are managed and resolved. Managing conflict of interests requires both honesty and professional trust. Team members need to inform and discuss where conflicts might occur and how each team member will respond before any concerns arise. The result of this discussion may be that agencies agree to respectfully disagree, but at least the cards are on the table so to speak which avoids confusion and distrust. Managing agency goals when they conflict with the team goals is more difficult. Acknowledging each agency’s political and financial needs and goals is crucial, but establishing ground rules about transparency in decision-making and the importance of the team will allow each agency the opportunity to participate or withdraw as it sees fit. Coalition and task forces can be managed by strong, skillful managers or can be operated by consensus. Within an Agency As with all legal representation, when you represent multiple parties you need to advise all parties of the potential for conflict of interest, and seek informed consent from all parties to proceed. See Appendix M: Sample Joint Representation Disclosure and Consent Form. If at any point an actual conflict of interest arises, you will need to withdraw your representation from any of the parties involved. Because of the vulnerability of human trafficking survivors, you should assist the survivors in seeking new legal representation. Human trafficking survivors have limited support networks and knowledge of available resources. In any one region, there are very

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few immigration legal services providers who have funding for and are familiar with human trafficking cases. Finally, your assistance with finding new legal representation for survivors when you are conflicted out is vital because often the traffickers are insisting that they have their own attorneys to represent the survivors.

Conflicts can also arise within an agency when the agency is providing multiple services. Other problems may arise if the goals and missions of different practice areas within one agency conflict with one another. Example: When I received Eben’s criminal history check, I was surprised to see that he had not told me about his previous two misdemeanor convictions related to domestic violence. I had specifically asked him whether he had ever been arrested before and/or had ever had any problems with his wife, and he had said no. I felt troubled because our agency also had a project and mission to end domestic violence, and I myself had several cases where I represented domestic violence survivors. When I asked Eben about the convictions, he said that he had already “taken care of the problem” with the prosecutor in the plea deal and that he and his wife were no longer fighting. Other conflicts may arise within an agency if they for example provide both civil and immigration legal services or legal services and some social services. In the first instance, the conflicts may be minimal since the civil and immigration legal services are parallel but different. The conflicts may arise when proceeding with an immigration application may be raised by the traffickers in the civil proceedings to argue that the claim is proof that the survivor is only bringing the suit to get immigration status. In this case, the civil and/or employment rights attorney may feel conflicted about the immigration claim, if it makes the civil or wage and hour claims more difficult. Competing claims for relief would exist between criminal prosecution and civil and/or wage and hour claims. Generally, a decision must be made by the agency whether to proceed on civil torts and wage and hour claim, or a wage and hour claim only. Then issues of assets and access to assets between these claims and criminal proceedings will need to be addressed separately with the prosecutors on your team. Where your agency provides both legal services and social services, the conflicts may arise in the context of competing interests and deadlines for the survivor. For example, the social service staff may feel it is in the best interest of the client to seek counseling, while the legal service staff may be facing statutes of limitation.

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In multiple party situations, conflicts arise when one survivor possesses information that could affect the application of another survivor. Conflicting information from the different parties to a trafficking incident can potentially undermine the credibility of one or more of the survivors. Sometimes different survivors may remember the facts differently and can provide conflicting statements as well. In group scenarios, some survivors could have been in a greater position of power, controlling, or even abusive towards another trafficking survivor. If several or all of the parties are in removal proceedings, interests in proceedings could diverge. In civil cases, the conflicts could extend to negotiation offers by the traffickers where one survivor may want to settle while another might want to take the matter to trial.

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In legal services offices where more than one type of law is practiced or where cases can involve more than one area of immigration law, it is possible to have represented someone on another legal matter, only to discover in the future that the former client is accused of trafficking in persons. As with all legal practice, screening for conflicts between former clients and present clients is essential to void ethical violations. In the same vein, it is vital to screen any new staff and volunteers for conflicts with the cases you accept for representation. This may be difficult to do without revealing the actual representation of specific clients to incoming staff and volunteers. All legal representatives can inquire as to any connections to persons identified in publicized human trafficking cases, as well as discussing generally the types of cases represented and then relying on new staff and volunteers to reveal potential conflicts. If it is not possible to create sufficient firewalls between these new staff or volunteers and the clients, then either the volunteers should be advised that the agency is unable to use their services or representation of the clients needs to be ended. Within Family Some examples are conflicts between family members. Because traffickers are sometimes extended family members, and because they often recruit more than one family member for forced labor or commercial sex work, it is important to carefully screen the family members and determine if there are potential conflicts of interest. There may also be potential conflicts of interest between the principal applicant and a derivative applicant, either because the derivative had some hand in the trafficking of the principal, or because the derivative might have stronger ties to the traffickers and may be pressuring the principal against cooperation. This scenario may also play out between parents and minors, where the parents have significant influence and control over the minor. Within the family, the dynamics are complicated. Add to this normal reality the complexity of human trafficking relationships, and the potential for conflicts of interest are great. With human trafficking, it is not uncommon that the trafficker is a family member, albeit sometimes a distant family member, but not always. Depending on the extent of the exploitation, the close degree of relationship to the trafficker (cousin rather than distant second cousin), and the philosophy/personality of the survivor (loyal versus independent), the ties to the trafficker may vary, as well as the response to the trafficking. Some family members may justify the forced work and obligation to pay a debt, wishing not to inform on the trafficker or cause problems, while other family member survivors may wish to report and pursue actions against the traffickers. Example: Jim was trafficked to the United States by a cousin for forced labor in a packing plant. He was promised good wages and reasonable hours so that he could attend school and learn English. Instead he was forced to work 18 hour days, and not paid because he allegedly owed his trafficker a debt. After working for three years, Jim believed he had paid his debt, and wanted to be paid or to be allowed to leave and work elsewhere. His cousin said he had nowhere else to go because he was in the U.S. illegally. Jim’s sister and some other members of their home town had also been

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Other times, family members may be abusive and may play a part in why the individual was rendered vulnerable to be trafficked in the first place. Example: When crossing the U.S.-Mexico border, 16-year old Johnny was kidnapped and forced by coyotes from the drug cartel to transport drugs back and forth across the border. He was finally arrested by U.S. law enforcement and prosecuted for possession of drugs for sale, but later discovered to be a victim of human trafficking. Johnny’s attorney was able to obtain a T visa for him, and began discussing with Johnny how to apply for his younger siblings and father to obtain derivative T visas to reunify and join him in the United States. But Johnny began to disclose to his attorney that he had actually left Honduras not only to escape the gang violence, but also his abusive father, who beat him constantly. Example: Fatima left Morocco because her husband frequently beat her. Although she knew from other stories that it was risky to accept the job as a domestic servant working for a wealthy family in Saudi Arabia, she decided to take the job opportunity because she was certain that if she did not leave Morocco, her husband would kill her. She left her 11-year old daughter behind with her mother, hoping to reunite with her once she was stabilized. However, she was subject to terrible and forced working conditions by the family in Saudi Arabia for three years, but was ultimately able to escape on the family’s vacation trip to the United States and obtain a T visa. To her horror, she discovered when trying to petition her daughter on a derivative T visa that her husband had taken control of her daughter’s life again and demanded that Fatima apply and bring both him and her daughter to the United States together, or he would not let their daughter come separately to the United States to reunify with her. Other times, family members can also act as Good Samaritans to help trafficking survivors escape a situation. However, similar dynamics may arise and cause conflicts, on occasion even leading to the re-trafficking of individuals. Example: The coyotes kidnapped Jose and held him hostage, calling many of his family members to demand an additional $5000 for his release. Finally, Jose’s uncle, the brother of his father, agreed to pay the money and went to pick Jose up from the coyotes. At first, Jose was very grateful to his uncle—after all, he had saved him from death. But

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trafficked to the U.S. to work in the plant. Jim was worried about his sister’s safety and did not want to leave while she still was working at the plant. Finally, Jim left and helped his sister escape. Later several other workers were rescued from the plant by law enforcement when Jim reported his trafficker to the police. One of the workers had developed a relationship with the cousin’s sister and they had a child together. This worker did not want to cooperate with the investigation. Jim’s sister was very scared of also participating in the investigation because she liked her aunt, the trafficker’s mother, and did not want to cause her pain. The situation became very complex, and representing the various workers became a conflict of interest for the legal advocate trying to assist the various survivors.

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Jose’s uncle told him that Jose now owed him $7500, additional money for the time and energy he spent to go rescue Jose. His uncle demanded that Jose work for his landscaping company. After eight months of non-stop work, Jose still owed his uncle $7500. He never could seem to pay off the debt. But his uncle, who was his father’s brother, would not pay Jose, saying that Jose owed him money now for rent, food, and clothing. His uncle would also frequently call Jose’s father to complain about Jose’s work. Jose’s father would call Jose and ask him to obey his uncle and to work harder to pay off the debt. If Jose showed any indication of unhappiness, his uncle would start to talk about how much it would disappoint Jose’s father, and how he would hate to turn Jose out on the streets, where everyone knew immigration regularly picked up “illegals” like Jose. With Derivatives When representing the principal, it is important to screen to make sure representation of the derivative is not a conflict of interest. In cases of potential conflict of interest between the principal and derivative or between derivatives, such as spouses or siblings, one way to proceed is to assign different legal representation to each. This can pose a problem since the numbers of legal advocates knowledgeable about human trafficking representation is limited. In this case, a necessary step is to have all parties sign a multi-party representation agreement stating they are aware that the legal representative is representing multiple parties and agree to that representation. When a conflict arises, the legal representative may need to withdraw from representation of all the parties, or from the conflicting parties in order to avoid violating her ethical duty of zealous advocacy of her clients. The representation agreement(s) can and should be explicit about the fact that the legal representative may elect to continue to represent the primary survivor should a conflict between primary and derivatives arise in the future. Example: Andrea was trafficked into the country for forced labor. After 15 years of forced labor, she was able to escape her trafficker. She met and married her husband, and wants to include him as a derivative on her T visa petition. Because of a potential conflict of interest, the legal representative has both parties sign a multi-party representation agreement. Although standard procedure and rarely an issue, in this case a conflict arises between the principal and the derivative when the derivative is arrested for solicitation of a prostitute and the principal tells her attorney she wants to divorce the derivative. At this point, the attorney must decide if she can continue to effectively represent one or the other or neither, and withdraw from representation from one or both petitions. Example: When I sat down to interview Noi about consular processing for her husband and three children after their derivative T visas had all been approved, Noi started to ask about bringing just her children, and not her husband over. As I asked more questions, I realized that Noi’s husband was abusive to her, and over time, she had begun to contemplate that she could really leave him. It was difficult to discuss with her whether or not her husband would allow her children to leave without him to rejoin her in the United States, and how that negotiation with her husband would look like.

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Example: A legal representative is assisting one of two sisters trafficked into the U.S. for commercial sex work. The one sister was trafficked as a minor based on false promises, and forced to work in commercial sex work. The second sister, also a minor, was trafficked later, and also forced to work in commercial sex work. The legal representative has assisted the first sister obtain her T visa, when the second sister requests assistance with a T visa. The legal representative hesitates because it is unclear what information her original client communicated or failed to communicate to her sister before the sister’s arrival in the U.S. The first sister knew of the actual intent of the trafficker to make her sister do commercial sex work. While applying for a derivative T visa might be the stronger option for the second sister, the legal representative believes there is at least a potential conflict of interest if not an actual conflict of interest. Because of the obligation to her original client, the attorney refers the second sister to another attorney to avoid a conflict of interest with a former client. At the time of consular interviews and processing, the question of custody may present many challenges. It may be that the trafficker is the parent of the minor; thus, while both parents’ signatures are required for applying for a passport and for exiting the country, the principal survivor may place her own safety at risk by seeking the other parent’s signature. It may be that the other parent, while not the trafficker, may refuse to give permission for the minor to join the trafficking survivor in the United States. This later scenario might pose a conflict of interest when the legal advocate is representing both the principal survivor and the derivative minor. Between Parents and Minors It is important to pay special and careful attention to possible conflicts of interest in the cases of trafficking of minors. Occasionally the parent had some responsibility for the trafficking or might pose a threat to re-trafficking of the child. Sometimes, the parent is opposed to the child leaving a situation of trafficking. Because minors are under the influence if not physical control of parents, these conflicts of interest are difficult to detect but enormously significant.

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Example: Neither Martin nor Bernardo had ever told their wives about how they had been tricked by the labor employment agencies into debt, and how they had really been living in fear and suffering for the last three years. They were instructed by many people, ranging from their attorney, the prosecutors, agents, to case managers to not talk about their case. Neither of them really wanted to worry their wives anyway. During the course of the trafficking, Martin had bonded with another victim named Maria, and as a matter of survival and mutual comfort, had an affair and a newborn with her. Martin told his immigration attorney that he still wanted to bring his wife and three other children over, however, and that his wife knew about Maria and his new baby. Bernardo on the other hand, could not wait to be reunited with his wife. He knew that they had been fighting a lot in the last two years. She could not understand why he was always so upset but secretive about what was going on, and she was upset with him for never sending money back and leaving her to support his parents on her own. When she arrived to the United States, on the second day, Bernardo’s wife told him that she was contemplating separation from him.

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Example: Betty was trafficked to the U.S. for forced labor in a restaurant. The arrangement was made between the traffickers and Betty’s parents. Betty did not know that she would be leaving her country for the U.S. to work until 72 hours before her departure. Betty had been raised not to question the authority of her parents, but she could not help wandering if her parents’ sending her away was their way of getting rid of an unwanted daughter. They pawned her off on relatives for most of her life and now she was being sent out of the country with strangers. When the legal representative was preparing to file a T visa for Betty, the representative asked about including her sibling and parents in the application as derivatives. Betty chose only to include her sibling. If Betty had asked to include her parents, this might have raised an issue of conflict of interest for the legal representative. Example: David was trafficked into the U.S. by a relative of his father. David and his mother were forced to live with this relative and work in their restaurant. While David grew tired of working long hours without pay after three years, his mother continued to insist that they owed a debt to their traffickers and they could not leave. Because David was afraid for the safety of his mother if he tried to leave, he was trapped in this situation of exploitation. Example: Sam was smuggled into the U.S. by relatives in order to reunite the boy with his father. Upon reunification, the boy found himself being trafficked by his father’s girlfriend and was forced to work for her janitorial business. The girlfriend would keep the boy home from school and bring him along with her to different cleaning jobs. He was forced to scrub toilets and clean floors with no safety equipment and was punished if he complained or made mention of this work to his father. The girlfriend would also restrict the boy’s food if he misbehaved. The girlfriend would physically beat the boy as well as the father; the father’s response was to excuse her abuse and to tell his son to behave better so that they would not make her angry. When the boy was ultimately found by police and taken away from the home, the father had to agree to separate from his girlfriend and discontinue the relationship permanently as well as go through a full course of parenting classes before the boy could be returned to his custody. The boy was very afraid for his father and wanted to protect his father. This made his interviews for purposes of immigration relief and for the prosecution of the girlfriend very difficult. He was extremely wary of saying anything that he thought might implicate his father. Fortunately, the father was able to communicate to his son that he expected and wanted his son to be truthful and that he would be safe if the son would do that. The critical factor in this situation was the presence and involvement of social workers with expertise in assisting child survivors of abuse, social workers who were truly invested in figuring out the best interests of this one boy and then working tirelessly to advance those interests. Without their assistance, reunification of the boy and his father may not have been possible and would have wholly stymied the boy’s ability to access the relief designed exactly for survivors like him.

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In other scenarios, conflicts of interests may arise between parent and child if the parent is a trafficking survivor suffering from massive trauma. The trauma in turn may affect the parent’s ability to safely and healthily parent their child.

In sad scenarios like this, it is important to remember to be mindful of that trafficking survivors suffer from trauma that may manifest in forms of violence, anger, and abuse on other family members. It is also important to remember that social service providers are mandated CPS reporters, and that it is important for case workers to work with trafficking survivors who are traumatized and have also been separated from their children on what healthy parenting looks like. It may also be helpful to counsel your client to receive family counseling services with their children. Conflicts of Interest/Representing Multiple Survivors Multiple worker cases pose a high potential for conflicts of interest, again because of differing ties to the traffickers, differing levels of exploitation, and internal politics or conflicts between the workers. See Appendix M: Sample Joint Representation Disclosure and Consent Form. To date the number of legal services providers that are comfortable and competent with representing human trafficking survivors is still limited. Thus, there is always the struggle of these agencies to represent large numbers of workers, while meeting ethical obligations to avoid any conflicts of interest. In cases where more than one worker is identified as a human trafficking survivor, it is important to screen the workers carefully to determine if there are potential or actual conflicts of interest. If there are potential conflicts of interest, then the worker must be advised in writing of the multiple-party representation and must sign that they understand the potential for a conflict exists and that the attorney will withdraw if a conflict arises. It is usual in these situations to identify other legal resources for referral in the event that a conflict arises. Conflicts are more likely in wage and hour claims and general civil claims where decisions about whether to settle or litigate may differ from worker to worker, or where traffickers’ resources are limited and thus recovery of damages by one worker may be affected by recovery of damages by another worker. Within the arena of immigration law, potential conflicts

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Example: Phuong finally managed to bring her 12-year old daughter and 15-year old son over from Vietnam to reunite with her. Phuong was overjoyed to be with her children again. However, about two months after reuniting with her children, Phuong’s case worker calls her attorney to inform her that the case worker was mandated to report Phuong to Child Protective Services. Phuong’s son had felt abandoned for many years to raise his younger sister on his own, and Phuong never explained to her children how her trafficking kept her away from them for so many years. Phuong had also started drinking more as a way to cope with her anger from being trafficked. Phuong’s son was angry that Phuong was neglectful of his younger sister and her needs. As a result, Phuong and her son fought several times when Phuong was drunk, leading Phuong to hit her son multiple times.

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might arise in the context of a worker who had some role in controlling or participating in the trafficking of other workers, or where the version of events is significantly different from one worker to the next. If zealous advocacy of one worker would affect the ability to zealously advocate for another worker, then a conflict exists and it is cleaner to withdraw from representation and refer the clients to pro bono or other legal services, or not to enter into an attorney/client relationship. Example: An attorney for a nonprofit law office agreed to represent several survivors who had escaped a situation of forced labor. When additional survivors were identified, the attorney agreed to represent them as well in applying for T visas. All of the workers were screened and were deemed to be survivors of human trafficking. While their exploitation varied from worker to worker, the attorney found no conflicts or potential conflicts of interest. After preparing and filing the T visa applications, one of the workers began to talk about another worker. The worker expressed concern and dissatisfaction over the multi-party representation, and while the attorney did not believe there was an issue about eligibility for relief or conflict between parties with respect to their claims, he determined that it was no longer possible to represent all parties zealously. At least some of his client’s comments indicated that she might no longer trust him completely with information, and so he determined that a conflict had arisen requiring him to withdraw from representing all of the workers. In screening potential survivors for a large forced labor human trafficking case, the attorney noticed that one of the survivors would often talk for the others. Another observation the attorney made was that the other survivors would often peek to see the reaction of this one survivor whenever they spoke to law enforcement or the service providers. The attorney became concerned of the role of the survivor in trafficking case, and while not ruling out that the survivor was in fact trafficked himself, the attorney decided it would be best to have another attorney from another agency screen him. Example: In a labor trafficking case with six survivors and one immigration attorney, there was constant bickering and bad feelings between the survivors of who the immigration attorney was completing the T visa for “first” and how much restitution each survivor was paid. Other arguments even included what survivor was getting nicer clothes supplied by the social workers. Despite the attorney’s attempts to keep the information separate and confidential between the clients, they continued to talk amongst themselves to compare information of who was getting what services, and when. In certain group cases, it is possible that not all of the identified potential victims are victims. Some of them may even be the perpetrators, and some may have been initially victimized but in recent times moved up to the position of “middle management” to perpetrate and traffic new victims. In these cases, it is important to remember the protocols on how to assess multiple potential victims, such as requesting and obtaining more information about the different individuals from law enforcement and social workers, who do not have the same attorney-client privilege obligation and conflict of interest issues that attorneys may have.

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§ 7.13 Information Keeping and Sharing Professional Obligations and Privileged Relationships

Given the ethical obligation of an attorney to protect her client’s identity and privileged communication, the concept of working with a team that includes non-attorneys can pose serious challenges. While communication between and among team members may benefit the survivor, the attorney-client privilege is absolute and does not relax because it might be in the best interest of the survivor to communicate information among team members. One way to address this is to seek a limited waiver from your client which allows you to disclose your representation, as well as limited information, with the team. Appendix N: Sample Release of Information Form. Another way to avoid breaching client confidentiality is to create agency agreements, which bring members of the team into the attorney’s circle of confidentiality. This may work for case managers and health providers, but will not work with law enforcement partners because of their separate Constitutionally-mandated requirements, as discussed above. Caseworker Privilege If your team includes domestic violence or sexual assault case managers, you will find they are also bound by confidentiality obligations. These obligations allow them to protect the identity of their clients. Confidentiality provisions for case managers are less restrictive and not as extensive as those applied to attorneys. Nevertheless, these provisions will restrict communications with case managers, unless waivers or agency agreements are in place.1 In late 2004 and throughout 2005, when the California Anti-Trafficking Initiative (CAI)2 was working with the office of California Assemblywoman Sally Leiber to draft California’s first comprehensive anti-trafficking legislation, AB 22, we specifically modeled the trafficking caseworker privilege upon the similar privileged relationship protecting the domestic violence and sexual assault caseworker and her communications with survivors of domestic violence and sexual assault. Advocates expressly analogized the need for the trafficking caseworker’s privileged relationship to the need for the domestic violence and sexual assault caseworker to

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See Cal. Evid. Code Article 8.7: Domestic Violence Counselor-Victim Privilege [1037.-1037.8] and Article 8.5: Sexual Assault Counselor-Victim Privilege [1035.-1036.2]. 2 CAI was comprised of Asian Pacific Islander Legal Outreach, Coalition to Abolish Slavery and Trafficking (CAST), and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area.

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As you aware, the communications (written and verbal) between a client and her attorney are privileged and should be treated as confidential. This privilege is strong, and can only be waived in very limited circumstances. This confidentiality means that you are unable to even acknowledge that someone is your client. It is possible for your client to waive that privilege if she does so in writing voluntarily and with an understanding of what that waiver entails. A client can provide a partial waiver of that privilege, by stating in writing the scope of information that may be revealed. And confidentiality may be breached by the presence of a third party in a meeting between the attorney and her client.

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have a confidential relationship with their clients, citing to the same kind of need for sensitive and traumatic information to be shared with confidence between survivor and caseworker. In September 2005, California passed the California Trafficking Victims Protection Act. From this law, sections were added to the California Evidence Code § 1038.2(b), which defines two types of human trafficking caseworkers. The first type of caseworkers is an employee or volunteer working with an organization that meets all the basic services required for domestic violence shelter based programs. The employee or volunteer must also meet one of the following requirements: be a psychotherapist, have a master’s degree in counseling or a related field, have at least one year of counseling experience of which six months must be for counseling human trafficking victims, or have more than 40 hours of training and is supervised by a counselor who meets the previously listed criteria. The second type of caseworker is an employee or volunteer working with an organization that provides victim and witness assistance to human trafficking victims. The employee or volunteer must also meet one of the following requirements: be a psychotherapist, have a master’s degree in counseling or a related field, have at least one year of counseling experience of which six months must be for rape assault counseling, or have more than 40 hours of training and is supervised by a counselor who meets the previously listed criteria. Many shelters in the North Bay and South Bay such as Asian Women’s Shelter provide this 40-hour training for either type of caseworker, which itself needs to meet certain training requirements. This privilege only covers confidential communications between the client and the caseworker. The human trafficking victim-caseworker privilege in California has not been interpreted by the court or challenged. Unlike the attorney-client privilege, the human trafficking victim-caseworker privilege is not absolute, and California Evidence Code § 1038.1(a) states that a court may compel disclosure if the court determines that the value of the confidential information in determining the case’s outcome is greater than fostering the victim’s relationship with their caseworker. This means although it is significant that there is a trafficking victimcaseworker privilege, it is not an absolute privilege and still may be pierced. It is still necessary to provide precaution to protecting the caseworkers with too much unnecessary information that may be subpoenaed and forcibly obtained from the caseworker. Privilege for human trafficking caseworkers and their clients also remains without firm and concrete interpretation and guidance so far in the federal courts. Although federal courts have not yet considered a federal privilege for caseworkers in trafficking cases, Rule 501 of the Federal Rules of Evidence does not prevent continued recognition of new privileges and privileges for relationships that are similar to the trafficking counselor-survivor relationship that have been recognized by states. The criteria by which federal courts assess whether a potential new privilege exists includes: the public’s interest in certain relationships, the importance of confidentiality to those relationships, federal policies weighing against extending a privilege; and policy decisions of states regarding extension of the privilege. While at least twenty-nine states to date have adopted some form of protection for survivors of domestic violence and sexual assault, only two states to date explicitly mention a human trafficking caseworker privilege. Because the trafficking caseworker privilege is based upon the premise of a domestic violence and sexual assault caseworker privilege and many of the caseworkers who work with trafficking

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survivors are employees and volunteers at domestic violence and sexual assault service agencies, one should argue the analogous relationship.

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Doctor/Patient Privilege

Therapist/Patient Privilege Therapists have obligations to protect patient confidentiality, again with certain exceptions. If your client needs mental health treatment or an assessment, it is beneficial to work with the therapist to find out what types of waivers they need. Then you can speak with your client and seek permission to prepare and have in place waivers signed by her. Clergy/Parishioner Privilege While not as stringent as medical, therapist, or attorney privileges, clergy operate under strictures about revealing parishioner confidences. If a clergy is included in the team serving your client, you may want to speak to your client about how much he or she would want his or her clergy to know and to reveal. Remember, except for attorneys, most of the team members, including clergy and case managers can be subject to subpoenas and forced to testify in criminal proceedings by the traffickers. Thus, while the client may be fine with open communication between and among her team members, restrictions on sharing communication may still be desirable. Confidentiality/Agency Agreements One way to address confidentiality within a multidisciplinary team setting is to limit information sharing to generic information, such as language capacity, gender, family status, type of trafficking, and identifiable needs. Another approach is to share limited information on a “need-to-know” basis, so that each agency for whom the survivor is a client, would decide which of the partners to involve in the case and what information is necessary to share to ensure the partners can prepare for providing the necessary services. Outside of the immediate team investigating the case and serving the survivor, discussions regarding trafficking cases with the wider coalition or task force should be restricted to non-identifiable information. Tracking human trafficking trends and clients served across agencies can rely on non-identifiable information and/or a unique survivor number. In the South Bay region, a protocol has been established to assign a unique human trafficking number to each

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Doctors are also bound by ethical duties to protect information of their clients. HEPA sets out strict requirements for when and how medical information may be released. Doctors and hospitals are required to seek specific waivers from their patients to release information. Thus, when working with a survivor who may have received medical treatment, it is useful to complete the HEPA release forms with your client in advance. This way you can comply with the requirements necessary to assist medical providers in communicating with you about your client and their medical condition and treatment.

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potential survivor who is screened, and in some cases identified and served by the coalition and task force. While this protocol is a work in progress, the value has been recognized by participant agencies. See Appendix E: South Bay Protocol for Survivor Number Assignment. Another option for avoiding breach of confidentiality and promoting fuller disclosure of information is the creation of agency agreements. These agreements expand the circle of confidentiality attached to the attorney-client relationship out to not only experts and consultants on the case but also to team members of the human trafficking case. Note that these agreements would not apply to law enforcement since these agencies are bound by Constitutional protections established for defendants in criminal proceedings. But for the purposes of sharing information among service providers, agency agreements can enhance communication without violating confidentiality. Written agreements can also help designate clearly who is an interpreter for legal work on a case, and who is a case worker. As mentioned earlier in this chapter, due to confidentiality and privilege issues, case workers should not also operate as legal interpreters. If certain case workers are asked to be legal interpreters for a case, they should not come from the same agency as a case worker, and agreements should outline these delineations of duties. See Appendix OO: Sample Interpreter Confidentiality Agreement. In cases where you are working with other attorneys from other agencies who are also representing your client, it may be helpful to sign either co-counsel or common interest privilege and confidentiality agreements to protect attorney-client and work-product privileges. See Appendix PP: Sample Common-Interest Agreement. Example: Tanya’s case was complicated. It was so complicated that she had four attorneys: one family law attorney to help her obtain a restraining order and divorce her trafficker, one immigration attorney to help her with her immigration status; and two attorneys helping her file her civil claims against her trafficker. Tanya also worked with a criminal assistant district attorney as a victim witness in a criminal case against her trafficker. Although her family law, immigration, and civil attorneys were cognizant of the limitations of information they could share with the prosecutor due to the prosecutor’s exculpatory duty to provide evidence to the trafficker, they decided that they needed to figure out the best way to share information amongst themselves so that the numerous declarations and documents they were filing in different proceedings were consistent and supported Tanya’s case. Tanya’s immigration attorney also decided that she also wanted to assist on the civil case. Ultimately, Tanya’s family law attorney signed a commoninterest agreement to share information and protect attorney-client and work-product privileged and confidential information with Tanya’s immigration and civil attorneys. Tanya’s immigration attorney and civil attorneys signed a common-interest agreement for Tanya’s immigration matters, but Tanya’s immigration attorney also proceeded to sign a co-counsel agreement with Tanya’s civil attorneys.

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Verbal versus Written Communication

Preserving confidentiality is your ethical duty, but it also makes practical sense. Human trafficking survivors have frequently lost control of their lives and have had their trust violated. By protecting communications with your client and assuring them that they will decide if and when information (other than the basic, non-identifiable information) is shared, you return to the client a measure of control over her life and you begin to build trust. Limited sharing of information is crucial for smooth team operations, especially when various agencies are required to respond rapidly to various scenarios. If some information is shared among the team members, it avoids the necessity of the survivor repeating basic information to each agency that assists her. In some cases limited information sharing might be able to reduce re-traumatization of your client. Confidentiality & Privilege Issues with Law Enforcement As discussed previously, law enforcement agencies (LEA’s) are bound by different rules when it comes to discovery and confidentiality. While reports with local law enforcement officers usually yield written police reports that you can assist the client with obtaining, federal law enforcement reports are generally less available. As we have mentioned in other sections, LEA’s will zealously guard information during an ongoing investigation to protect evidence and the safety of their officers. However, under most circumstances LEA’s are required to turn

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It is important to note that there is a significant difference between “discovery” and “production.” “Discovery” in a criminal prosecution means the exchange of information between the defendant and the prosecutor. See Federal Rule of Criminal Procedure 16. The prosecutor is constitutionally required to disclose information that is both material to the issue of guilt and potentially exculpatory. See Brady v. Maryland, 373 U.S. 83, 87-88 (1963). “Production,” on the other hand, is the system used by the defendant to obtain information from nonparties, such as victims and witnesses. See Fed. R. Crim. P. 17. The U.S. Supreme Court has outlined the criteria that a defendant must meet in order to justify compelling a nonparty to produce materials to the defendant, among which are that the material must be admissible at trial and cannot be a general fishing expedition. See U.S. v. Nixon, 418 U.S. 683 at 699-700 (1974). This distinction is important because many defendants will seek to attack a victim’s privacy by seeking to obtain private and personal records, such as counseling, mental health, and other records. By knowing that the two are not the same and that there are strategies that a victim may use to stop such an invasion of privacy can mean a huge difference in the victim’s life and emotional health in a criminal proceeding.

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In cases where agencies are bound to provide any exculpatory information to the opposing party, it makes sense to limit written communication to that which must be memorialized, e.g., reporting of a trafficking incident to law enforcement which can constitute secondary evidence of cooperation with law enforcement. In these cases, the rule of thumb is to keep what you say to a minimum. Outside of these few exceptions, verbal communication through phone or in-person is preferable. While law enforcement may still be obligated to provide a summary of conversations, the information may carry less weight. It is important for caseworkers, law enforcement, and attorneys to never email, text, or write down substantive information about a client’s case that may come back to be used against the client in a criminal case or civil case. All of this information may be sought and obtained by the defendant.3

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copies of materials, especially exculpatory evidence, over to the defense in a criminal matter. Sometimes the defense requests some materials. Other times in fairness to the opposing party, the prosecutor will provide the defense with copies of evidence. The materials can include police/FBI reports, correspondence with other agencies (including with the survivor’s attorney), documents gathered as evidence in the case, and materials prepared by the prosecutor or investigator, such as the Immigration forms I-918 or I-914 Supplement B’s. The prosecutor can ask permission from the judge not to disclose certain information, such as the survivor’s address and contact information. It is up to the judge to decide whether to agree to that request. The prosecutor can also file documents with your client’s name under seal, including restitution order requests. Remember the prosecutor represents the government (federal or local), not the survivor. The survivor is an important witness to the prosecutor but not his client. Thus, it is up to the immigration attorney or civil attorney to advocate for the interests of the survivor. However, it is much harder to prevent the disclosure of other witnesses to the defense, including witnesses that are friendly or positively disposed to the victim. Prosecutors are also mandated to provide the names and information of all potential witnesses to a case, including witnesses that are not your client. Some methods to protect your client and these other witnesses from defense tactics include talking to the prosecutor to see the timing of the release of witness names to the defense. Often, defense attorneys will hire investigators and call witnesses in the case. Sometimes the defense attorneys and investigators will make vague, alluding remarks, confusing the victim/witnesses about who they are, prompting conversation. While this is the defendant’s right to access other witnesses in the case, as the victim-witness’ attorney, you can counsel your client and witnesses supporting your client about the potential phone call they may receive from the defense team, and their right to not have to talk to them or respond to them. You can also request the prosecutor alert you when they are turning over the other witness names and information so that you can also reach out to your client and the other witnesses to warn them of impending calls from the defense. Given the requirements on the part of law enforcement to disclose information and provide copies of material to the defense, civil and administrative representatives of the survivor need to make conscious decisions what material to provide to the LEA, and to what extent to record conversations (via email or snail mail or text) with LEA agents or attorneys. Immigration attorneys are required to report incidences of human trafficking that are not already known to an LEA for purposes of seeking a T or U visa; however, the reports can be crafted to avoid disclosure of specific details that would fall under attorney-client privilege. While important to document in writing that a report has been made to law enforcement, it is best to leave out complicated, substantive details that may be inaccurate or refuted later, creating further impeachment issues and inconsistent information for a criminal or civil cases. Immigration attorneys must also request a Supplement B from the investigating or prosecuting LEA; however, again the request can be simple and without extensive details. The difficult part of this situation is that secondary evidence of reasonable cooperation may be needed in order to file a T visa, in the event the LEA chooses not to provide a Supplement B or delays in providing it. Thus, it is not possible to avoid written forms of communication. Short emails and letters with draft Supplement B forms may suffice. Also LEA’s sometimes forget that attorney-

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One mechanism for avoiding conflicting statements, and for supporting the survivor, is for the civil or immigration attorney to be present with the survivor during the LEA interviews of the survivor. While this next point is common sense, it is important for the immigration or civil attorney not to take notes during the LEA interview, since those notes could be discoverable. Another option too is to build the client statements directly into the declaration of a U or T visa so that the information can be protected work-product privilege. This way you ensure that you have the same information as law enforcement built into a declaration. The key is to ensure that no parties take what seem to be transcript-like notes because if this information is ever produced, it will be taken as a transcript rather than as notes. The exception might be random assessments or theories on the case that the attorney records for her own case preparation while sitting in the LEA interview of her client. Finally, if law enforcement provides a Supplement B or Continued Presence for a T-visa, both considered important pieces of evidence that may allow you to write a shorter and vaguer declaration to provide less impeachable information about your client. Confidentiality Concerns with Law Clerks Generally law clerks and law students, as well independent interpreters, are considered part of the legal team covered by the attorney-client privilege. It is important to impress on the law clerks, law students, and interpreters that they cannot discuss the communications between the office and the client without express written consent of the client and without authorization from the attorney. Law clerks and law students are usually trained in ethical considerations, such as attorney-client privilege and work product privilege, but for many, the clinical setting or an internship/externship may be the first time they will be applying this training to real life scenarios. Therefore, a refresher training at the beginning of their work in your office is always beneficial. Example: KGACLC, as the civil clinical program for Santa Clara University Law School, works with new students each semester. As part of the students course requirement and a prerequisite to beginning work on cases, all students are required to attend an all-day training at the start of the semester on interviewing techniques, working with an interpreter, cross-cultural communication, and ethics. The ethics portion addresses confidentiality, unauthorized practice of law, conflicts of interest, competent representation, among other issues. Students are reminded of methods to protect

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client privilege protects the communications of the civil or administrative attorney with her client, and so the LEA may ask for details of the case or copies of declarations. LEA agents and attorneys need to be reminded of the privilege, and the efforts of civil and administrative attorneys to avoid any conflicting statements in documents their offices prepare. It is usually best to create protocols and request that law enforcement not email and write you about any substantive details about the client. Sometimes law enforcement may also feel obligated to put in writing why they do not consider your client a trafficking victim or why they are not pursuing a case. It is usually not beneficial for the clients to have documents like this in writing because they can be discoverable in civil cases or future criminal prosecutions. There is also the constant confusion that the standard that cooperation with law enforcement is equivalent to the finding from law enforcement that your client is a victim of human trafficking in their eyes.

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confidentiality, the importance of confidentiality, and ways confidentiality can be breached throughout the day-long training. Students are also required to sign Oaths of Confidentiality and to disclose prior work and/or client contact to avoid potential conflicts of interest. For students working on cases, additional ethics classes are offered during the semester. While law students and law clerks have ethics drilled into their consciousness by law school courses and professors, the reality of working in a law office, sometimes for the first time, with live clients, and in the context of a team of victim service providers, LEA agents and medical and mental health providers, can produce a disconnect. It is important for the supervising attorney and the law office to reinforce the issues of confidentiality and privilege in general and in case-specific situations. Law students and clerks will understand, but may need reminders, since even seasoned attorneys in chaotic situations may find the lines between privileged information and information required for seamless team work fuzzy at best. Because many law clerks learn about confidentiality and privilege in the classroom, few of them have experience and knowledge on exercising these concepts in practice. In the digital age, law clerks need to be reminded not to post anything substantive about their work on the Internet and social media, as well as to reduce written, substantive information to non-attorneys and law enforcement about a case. If it is difficult for law students and clerks, remembering confidentiality rules can be even more challenging for interpreters unless the interpreters are legal staff or seasoned legal interpreters. Similar training and reminders are important for the interpreters on these cases.

§ 7.14 Safety Concerns (Client/Agency Personnel) Certain information must not be shared in order to protect the safety of the client or agency personnel, or to protect the integrity of an investigation. Location of a trafficking site under investigation should not be revealed to anyone other than those members of law enforcement who need to know. Information of a pending law enforcement action may be limited to protect the undercover agents, as well as the investigation generally. If traffickers suspect they have come to the notice of the community, they will move survivors quickly preventing rescue of the survivors. These safety concerns will have to be weighed against preparation for housing, communicating with, and providing services to the survivors. For the later purpose, service providers should urge law enforcement to reveal as much information about the known or suspected survivors prior to an action, and preferably more than 24 hours prior to an action. Your agency may also want to review your internal safety protocols when a new trafficking case begins. The universe of anti-trafficking advocates and service providers is relatively small. Your staff may have memorable or unique surnames that make them easy targets to locate online or for their personal or work information to be discoverable. You should review the safety concerns of your staff and discuss reasonable and practical ways of minimizing potential safety risks, such as:

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   



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

Having a code word that the front desk or receptionist may use to signal for help if there is a suspicious individual(s) attempting to seek entry to your workplace Locking office doors after, or even during, work hours and having a buzzer system in place to allow secure entry and exit of office staff Having a post office mailing address for all communications instead of using your office’s physical location Avoiding having full names of staff listed online and reminding staff to keep their home contact information private Ensuring that private information for all staff is kept private and not shared with anyone outside of the office, including clients, opposing counsel, etc. Using a buddy system so that no staff person is ever left in the office alone or forced to exit the workplace after dark alone

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CHAPTER 8 PROTOCOLS REGARDING DISCOVERY OF A HUMAN TRAFFICKING SURVIVOR

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This chapter includes: § 8.1 § 8.2 § 8.3 § 8.4

§ 8.17

It is very useful to establish in advance a set of protocols for responding to human trafficking cases when the survivor is identified by law enforcement or non-law enforcement. If a roadmap and rules are created in advance, the chances of someone falling through the cracks and/or of miscommunication are minimized. These protocols also allow the agencies to clearly define their role and responsibilities in this type of scenario. Moreover, traditionally, law enforcement agencies are accustomed to working independently from service providers. Agents and officers may work in tandem with other law enforcement agencies, with prosecutors and with specialists, but rarely does the team include service providers. To a limited extent, service providers or an advocate participate in cases involving domestic violence or sexual assault. Usually the role of the service provider is to accompany the survivor and to advocate on her behalf. The dynamics are different in the context of a human trafficking case. Service providers must be involved from the outset because of the scope and complexity of these cases, the needs of the survivors and interdependency of law enforcement and service providers in moving forward with their respective tasks. At least initially, the partnership between service providers and law enforcement will take some adjusting to. Some partners may resist and resent having to depend 8-1

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§ 8.5 § 8.6 § 8.7 § 8.8 § 8.9 § 8.10 § 8.11 § 8.12 § 8.13 § 8.14 § 8.15 § 8.16

Designating a Point Person................................................................................. 8-2 Notification of Impending Law Enforcement Action ........................................ 8-5 Phone Tree to Activate Service Providers .......................................................... 8-7 Coordinating Logistics of Intakes, First Contact with Potential Survivors, Assignments ...................................................................................... 8-8 Presence of Advocate(s) ..................................................................................... 8-9 On-Site Intakes ................................................................................................. 8-11 Assessment ....................................................................................................... 8-13 Protecting Shelter Anonymity .......................................................................... 8-14 Relocation of Survivor(s) ................................................................................. 8-16 Separation from Traffickers ............................................................................. 8-17 Debriefing as a Team ....................................................................................... 8-18 Scenarios in Which This Occurs ...................................................................... 8-19 Activation of Service Providers ....................................................................... 8-20 Report to Law Enforcement ............................................................................. 8-21 Mobilizing Your Team ..................................................................................... 8-23 Identifying Emergency Needs (Safety, Health, Family Safety, Shelter) ............................................................................................................. 8-24 Good Samaritans .............................................................................................. 8-24

on the other. Regardless of whether the partnerships are one of genuine professional respect or of grudging acceptance, the clearer the communication and expectations, the more seamless will be the response to human trafficking cases and survivors. Maintaining focus on the needs of the survivor can provide the basis for working through the awkward stages and the challenges of working as a team. If the law enforcement agencies that you must collaborate with are in the “grudging acceptance” camp, do not give up; keep reminding them of both your shared objective to help the victim and the practical utility of having service providers available to assist and provide invaluable support services to victims, who make much better witnesses when stabilized and invested in the process. While you cannot guarantee the survivor’s interest in cooperating with law enforcement, you can guarantee that without services and a feeling of security and trust, most if not all victims of horrendous trauma will fail to be helpful for various reasons and through no fault of their own.

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§ 8.1 Designating a Point Person One important step in establishing a protocol for post-identification of a human trafficking survivor is to designate a point person. This person would receive calls from partner agencies, law enforcement, and/or the general public reporting a case of human trafficking. This point person would immediately activate the network of service providers and ensure the survivor received immediate and necessary support. In establishing its protocols in the South Bay region, the South Bay Coalition has chosen to select its point person from an agency, which has a 24-hour hotline, as well as domestic violence or sexual assault provisions for confidentiality. Several partner agencies meet these qualifications and alternate in housing the point person. It should be noted that designation as the point person means the person is on call. If at all possible, the person in this position should rotate out every few months or years; thus, avoiding burnout. In San Francisco, different models have been used but one of the most effective models has been to have a single point person designated who will, as in the South Bay region, activate the network of service providers. This point person has a designated “back-up” so that there is coverage even in the event that the point person is ill or somehow unable to be reached (i.e., in a court hearing; on vacation, etc.) The San Francisco model has had an attorney serve as the point person with a designated social service coleader who is the first person contacted by the point person and who then contacts the next “level” of service provider in an organic way—a phone tree is kept updated by every participating service provider as well as by law enforcement and government agencies that are members of the San Francisco’s regional task force. See Appendix A: North Bay Task Force Referral Protocol/Phone Tree. Within a law enforcement agency, ideally one person from that agency should be designated to receive the information. For example, if an office on patrol comes across suspicious circumstances and suspects potential human trafficking, the agency should have a designated person who is familiar with these types of cases, to receive the call and take the lead

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on the investigation. Similarly, if a 911 operator receives an anonymous tip about possible human trafficking, the operator should know immediately which department and which agent or officer to refer the call to. In the South Bay region, the San Jose Police Department Human Trafficking Task Force has designated an officer to receive these calls. When the officer is not available, she assigns this responsibility to another officer familiar with human trafficking. This officer initially investigates and then follows up with another law enforcement agency (local or federal) as appropriate. In San Francisco, there is also a designated officer in the San Francisco Police Department who is tasked with follow-up on all calls or tips regarding a potential human trafficking situation. In addition, the SFPD’s Special Victims Unit has been cross-trained on dynamics of crimes such as human trafficking, domestic violence, sexual assault, and elder abuse.

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Within a service provider agency or law office, one person should take primary responsibility for receiving inquiries and tips about potential human trafficking. This practice avoids the potential that a call or case falls through the cracks. For example, if the agency receives a call through its hotline or receptionist, the operator or receptionist should automatically refer the call to the agency point person, or her designee if she is out of the office. If another branch of the office discovers a potential human trafficking survivor or case, that staff person should know immediately whom to contact in order to screen the case.

The person chosen as a point person for the service provider team must either be willing to be on-call 24 hours a day, seven days a week, or have a designated plan and providers ready to respond during non-office hours. Law enforcement actions sometimes take place at night, on weekends and on holidays. Thus, the point person will always be on call. Given the stress and strain of this responsibility, the task of serving as point person should be rotated among service provider staff. Also, a back-up point person can be designated for times when the principal point person is out sick or on vacation. As noted above, the South Bay coalition has created some parameters for eligibility to serve as point person. First, the point person must be someone working for an agency with a 24hour hotline. This requirement facilitates calls coming to the point person at all hours of the day or night. While the point person may have a cell phone, the phone may not have good reception or service in a particular area. The 24-hour hotline is always staffed and able to get the calls. In San Francisco, there is no such requirement regarding a 24-hour hotline in order for an individual to act as the point person. However, the individual must understand and agree that his or her contact information will be known and used by law enforcement at any time if a potential human trafficking situation warrants such contact. In San Francisco, law enforcement is also informed to contact a 24-hour hotline if the point person cannot be reached with trained individuals ready to respond to the intake of a case. The other requirement is one shared by both the South Bay and San Francisco coalitions: the point person must have some level of confidentiality. In California, some domestic violence agencies have limited confidentiality.

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Outside of the individual agencies, there should be a primary contact person for law enforcement and a primary contact person for service providers generally. The former will be discussed more in the next section.

Although not as extensive as the privilege that attaches to attorney-client communications, the confidentiality for a case manager will protect the communications to a limited extent. Outside of these requirements, the point person must be willing to take on this responsibility.

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The role of the point person is to act as the information nexus and clearing-house: she receives and collects information from law enforcement and distributes that information to the essential members of the services network. Part of the point person’s role is to receive calls or communications from law enforcement about a potential or actual action where human trafficking survivors might be present. The point person may accompany the officers/agents on an investigation, or might be advised that an action has taken place and potential survivors have been identified and may need services. The point person will attempt to learn as much as possible from her presence at the site of the investigation or from law enforcement about what they know or suspect about any potential survivors. Important information includes language, age, gender, health concerns, level of risk to safety, shelter needs, and numbers of survivors. With this information, the point person will begin contacting various agencies to activate services needed. It is important to stress to law enforcement that a point person’s job is not necessarily to guarantee that other partners will take a legal case or agree to provide shelters or services. A legal agency, especially in group cases, may still want to assess the case for merit or conflicts of interests. A shelter may want to do its own assessment of the client to deem whether or not there is room for the potential victim, and whether or not the potential victim is a good fit for the shelter and/or pose a threat or harm to the other shelter residents. Example: On a Saturday night at 9pm, law enforcement calls you about a potential trafficking victim. One of the discovered potential victims was a former resident due to domestic violence issues at the shelter in your collaborative and declines to accept the potential victim again due to previous conflicts at the shelter. The point person needs to stress that their job is to collect and disseminate information, but that each agency, even though working in a collaborative, may still have its own policies, protocols, and interests that may preclude their ability to work with a potential victim, and that it is the agency’s individual choice whether or not to accept the case. In cases of discovery by a law enforcement agency, protocols can promote seamless efforts between the agency and its service provider partners. These protocols also may establish a process for coordinating among law enforcement agencies, including which agency takes the lead on a particular case and what roles if any the different investigative and prosecutorial, as well as federal and local, team members take. See Appendix B: South Bay Coalition to End Human Trafficking Protocol.

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PART ONE: WHEN LAW ENFORCEMENT IS THE INITIAL POINT OF CONTACT § 8.2 Notification of Impending Law Enforcement Action

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As noted above, a crucial issue to address in law enforcement discovery of trafficking survivors is the point at which service providers are notified. Law enforcement will justifiably argue that premature notification of law enforcement actions could jeopardize the safety of undercover officers and/or the integrity of an investigation. Potential survivors could disappear if the traffickers find out about law enforcement involvement prior to the completion of the agency’s preparations for a “take down” or “bust.” Service providers, including legal immigration advocates, have a need to know pending law enforcement actions and any information on potential survivors as much in advance as possible. For service providers who are at capacity or near capacity, advance information can assist the team to identify sufficient numbers of available case managers and attorneys and can ensure sufficient housing and language capacity. Knowledge of the physical and mental condition of survivors will allow case managers time to have medical and mental health services available.

The time frame for advance notification may vary from one incident to another. The preferable amount of time for prior notification is 3 to 7 days; however, sometimes law enforcement is unable to give that much notice. At the very least, 24-hour notice should be part of the notification protocol, with a request for a longer period of advance notice where possible. In general civilian involvement will occur at some point after the initial law enforcement action. In some cases police may have the point person accompany the officers as they move in to investigate a possible human trafficking situation. Again, the decision of when to involve service providers will depend on the law enforcement agency, the relationship it has with its service providers, and the safety of all parties. Where possible, it is important to include service providers—both case managers and immigration attorneys as soon as possible. Immediately after a law enforcement action, an assessment of immediate needs must take precedence. Even if you cannot be onsite at a law enforcement action to conduct preliminary intakes with potential survivors, the point person in communication with the front-line staff of law enforcement must ascertain the first possible opportunity that your service-provider-team can have access to potential survivors. Survivors may need urgent medical, dental or mental health

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A protocol could help define which agency or team member from the service providers will be contacted prior to a law enforcement action. Law enforcement must trust that the service providers involved in preparations will maintain confidentiality until the action takes place. It is possible that law enforcement may be willing to notify about a “potential human trafficking case where they may be 30 victims, all women and all Spanish-speaking.” While no specific information is provided on the location of the case or the names of any parties, law enforcement can provide enough information on survivors in order to help service providers arrange for appropriate shelter and services.

treatment. Emergency shelter, food and clothing must be available. Survivors who have little or no personal possessions will need personal hygiene items. Some survivors with addictions may need support when they no longer have access to drugs, cigarettes or other items. Most survivors are very fragile. They have few support systems outside of their traffickers, so beginning to stabilize their lives and give them alternative support systems is crucial.

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When survivors are removed from the control of their traffickers, they are usually scared and confused. The traffickers have threatened them with fear of everyone in the outside world. Traffickers have said that if they leave they will be arrested, detained and deported. The survivors usually do not have any information with which to distinguish the respective trafficking team members and their roles, especially if law enforcement and service providers are present simultaneously. As soon as the survivor is safe, you or one of your team members should explain who each of the players are (e.g., attorney, case manager, interpreter and officer/agent) and what each of your roles are. Without this explanation, the survivor may assume that everyone is law enforcement. Safety for a survivor means removing him from the control of the trafficker. If the trafficker has attorneys ready to step in on behalf of the survivor, it will be important to have independent counsel immediately available to represent the survivor. The survivor should understand that she has no lingering obligation to the trafficker, and instead has options and resources. When traffickers belong to criminal organizations, safety may mean moving the survivor to another part of the region or the country. If the survivor is placed in removal proceedings, you can request that the Immigration court system does not reveal the survivor’s name in order to protect her. Safety may also include securing family members abroad. Most traffickers know where family members reside, and have threatened to harm family members. Working with nongovernmental agencies in the survivor’s country of origin to protect family members will lend a sense of safety to the survivors here in the United States. Law enforcement actions can be chaotic, especially if there are many agencies or personnel involved. In these situations, providing survivors with information on what is happening and what will likely happen next can help calm the situation, as well as help the survivor make sense of the chaos. In some law enforcement actions, the agency or agencies may be observing and working undercover for a period of time before obtaining a warrant to move in. In other cases, law enforcement agencies may be called to the scene of suspicious circumstances. In these cases officers cannot enter a home or business without reasonable cause that a crime has occurred or is in progress. Reasonable cause is necessary to obtain a warrant. Officers may attempt to drive by and interview the reporting party, as well as any neighbors or witnesses. An officer may also attempt to “knock and talk” by knocking on the door and asking permission to enter the premises. Once inside the premises, the officer will try to talk with the occupants and may ask for a tour of the premises. The officer will be looking for evidence that indicates a situation of urgency requiring a warrant for a more extensive search or other action (minors involved or survivors in danger).

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Once a warrant or an action is undertaken and potential survivors are identified, the officer should contact a coalition point person who will activate the network of any other pertinent players. At this point the team takes shape based on a thorough assessment of the survivor’s needs. Each team member should work closely together to provide consistent information to the survivor, as well as complete services.

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The role of the coalition team is explained in more depth below. The key in establishing protocols and ground rules is to define in advance how and when each member of the team will become involved in a human trafficking case, what roles each team member has within the case, and how the information will be conveyed to the survivor.

§ 8.3 Phone Tree to Activate Service Providers Depending on the amount of advance warning the point person receives will depend on how quickly she can activate the services network. In some cases advance notice may be minutes. In other cases, while the notice may be given hours before an action, if the action takes place during a holiday weekend, the task of contacting various service providers may prove difficult. For this reason, creating a phone tree is useful.

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The point person receives a call from law enforcement about an action to occur in three hours. The number of potential survivors is believed to be ten. The language is Vietnamese. There are believed to be seven women and three men ranging in ages from 15 to 50 years old. They have been exposed to dangerous chemicals, and may have severe respiratory conditions or untreated skin conditions. All ten potential survivors will need emergency shelter, food, clothing, and personal hygiene items. One of the survivors may be pregnant. This is all the information the officers have at this time.

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With this information, the point person will contact one or two case managers. The case managers will contact potential shelter providers. Once shelter space is identified, the case managers will begin to address other immediate needs—medical attention and language interpreters. With assistance from the language interpreters, the case managers can begin to identify sources for culturally appropriate food, clothing and personal hygiene items. Medical facilities, on receipt of information of the types of medical conditions, can begin to line up specialists to address the particular conditions. Finally, the point person will contact the legal services point person, who will activate the network of legal service providers—immigration, civil, and if necessary, criminal.

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The phone tree will be unique to each region and reflect the types and structures of service agencies in that region. As well, the phone tree may need to be flexible to meet the needs of different types of cases. Some cases have large numbers of potential survivors and will need a more extensive phone tree. Other cases have fewer numbers, but the survivors have many more needs; thus, the number of agencies that needs to be recruited to meet these needs is greater. Generally a phone tree may take the following form:

§ 8.4 Coordinating Logistics of Intakes, First Contact with Potential Survivors, Assignments

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Upon discovery of survivors of human trafficking, various agencies will want to conduct intakes. Law enforcement will be screening the survivors to assess whether a crime has occurred, to determine how much information the survivors possess, and to separate victims from perpetrators. Legal representatives will be screening for potential legal claims, availability of evidence to meet the elements of the claim, and any statutes of limitation or filing deadline issues. Case managers will need to conduct a limited intake of the survivor to assess her needs, to understand any threats or risks she faces, and to determine what resources need to be activated on her behalf. The myriad of interviews and intakes can be confusing, duplicative, and exhausting to the survivor. For this reason, it is best to have an agreement among all parties as to the process and priority for conducting intakes after a law enforcement identification of survivors. Even with an agreement, someone will need to be in charge of coordinating the logistics of intakes, making sure as much as possible that the survivors understand why they are being asked the same or similar questions more than once. Coordinating logistics also means arranging times for various intakes. As a legal advocate, ideally you would be present during the first interviews with the survivors in order to assess legal rights and remedies from the very beginning. You may believe that someone is a survivor with legal rights, while your law enforcement partner may not see the person as a human trafficking survivor. As part of first contact with potential survivors, it will be important to identify each of the team members and their roles and responsibilities. You may need to explain and stress the independence of each team member, the tasks of each team member, and why more than one person from the team will ask the same or similar questions. While law enforcement will want to have first contact with the potential survivors, it is important if at all possible that an attorney or case manager be present. The case manager or attorney can assess the situation from the point of view of the needs of the survivors. It is also helpful to have more team members present, and not just law enforcement, especially if the traffickers have used the threat to call law enforcement to instill fear in the survivors. In these cases, the survivor may not separate all of the individuals, and may assume they all work for the same agency—usually law enforcement. Often postidentification can be chaotic and overwhelming to survivors. So repeatedly clarifying roles and distinctions among the agencies is important. In responding to the identification of survivors, all team members should clearly know and understand his or her assignments. This planning avoids team members stepping on each other’s toes. It also guarantees that all bases are covered. And it helps bring some order to an otherwise chaotic situation. The order will reassure the survivors, and will make the work less stressful for everyone. Example: The holiday weekend was fast approaching when I received a call on my cell. Remember when we talked about the hypothetical raid that might uncover a few dozen victims? asked the federal prosecutor. Well, it was no hypo, it’s real, it’s happened, and

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we actually have a little over 80 women and girls in custody right now. How soon can you all be available to start your interviews? I was speechless and my mind was starting to tick off the list of tasks that I’d need to get rolling immediately to address a case this big: I needed to call the designated leads for language/cultural support, housing coordination, and case management to alert them of the situation and to start rounding up the necessary staff that would be critical to handling such a large number of potential survivors. I also needed to get the supplies ready for a multi-day intake process: food and drinks for the staff, multi-lingual informational cards for the potential survivors, intake forms, a laptop to keep all the information organized on-site, the list went on. I started peppering the prosecutor with questions. Do you have a list of the languages spoken by the survivors? And how many are possibly minors versus adults? And when and where can we meet them? I heard her let out a breath over the phone before she responded. Okay, here’s what I know.… So much for the planned weekend I had had in mind with friends and family, just barbecuing outside and relaxing for a change. The thought enters my mind that I’ll also need to find a way to explain this to the kids and figure out how to make it sound fun that I’ll probably not see them for the next few days.

§ 8.5 Presence of Advocate(s) Some law enforcement agencies are comfortable with including case managers, attorneys and language advocates in the immediate post-identification process. In the South Bay region, the police departments have contacted case managers and language advocates to accompany them on actions involving potential human trafficking. This practice has ensured that trained language interpreters and case managers are on the scene to offer immediate services to survivors. This practice is not universal and is something that may need to be developed through a protocol. Without the presence of an attorney or case manager to explain to the survivor her

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Less than 24 hours later, we are driving in a caravan of cars to the detention site where the authorities have the women and girls housed. As we exit our cars and walk towards the entrance, we call a quick meeting so that we can review our “script,” which includes an explanation of who we were, what we were doing here, and why we are present. We confirm again the procedures that we are all expected to follow for the intake and review process to go smoothly, assign teams of interviewers composed of a case manager to conduct a social services needs assessment and language support if needed, and confirm the shift assignments and break times. A moment of tension arises when several of the case managers state that they have their own written materials to hand out, but we get through it by explaining the fact that the coalition of service providers had agreed to use the materials created by the coalition and that in order to keep all the information consistent for survivors, we should stick to this agreed upon plan. When I look up, the prosecutor was walking towards us with her team of agents, a clipboard gripped in her hands, and a tired but welcoming smile on her face. Thanks for being here. I’ll show you where I have some rooms set aside for your group. Please make sure you all wear your ID badges at all times on these premises. Let’s get started.

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rights in the United States and to offer services, survivors may not feel safe to self-identify or may disappear. In San Francisco, currently the practice is for attorneys and case managers to consider requests to accompany law enforcement on these actions on a case-by-case basis. Concerns include confusion on the potential victim’s behalf of who is law enforcement and who is non-law enforcement, and subsequently, whom they think they can trust. Other concerns include law enforcement request for social service providers to interpret on behalf of law enforcement, further creating potential confidentiality and privilege conflicts. Example: The FBI was investigating a case of human trafficking of young adults for work in a service industry. The investigation had been ongoing for approximately a year. Case managers and an attorney were aware of this case because a number of the survivors had escaped and were being assisted with legal and social service needs. The attorney was aware from her clients that additional survivors were still being held and forced to work. As the time approached for the FBI to move in to conduct searches and arrests, the attorney asked that she be notified and allowed to accompany in order to assist in screening the remaining survivors. Several weeks later the attorney saw a newspaper article stating that the FBI had conducted its action, had identified three additional workers, had determined that the workers had not been trafficked to the United States and allowed ICE to remove the three workers from the United States. The attorney immediately contacted the FBI with several concerns. First, her information was that more than three workers were still being held, so what happened to the other workers? Second, why had the FBI not informed her about the action and not allowed her to also screen the workers to determine if they met the elements for human trafficking. The FBI assured her there were no other workers and that their victim specialist had done the screening. The other concern raised by the scenario discussed above is the significant collapse of the trafficking team. Law enforcement and service providers had nominally formed a team to work with the survivors who had escaped. However, the fact that law enforcement proceeded with its action without informing its service provider agency partners demonstrated a lack of respect for and acceptance of the team-based dynamics of trafficking work. As a consequence, trust and communication between the partners were severely affected. To avoid situations such as the one discussed above, a protocol establishing when and how attorneys, case managers and language advocates will be involved during and immediately after law enforcement actions is crucial. Although not bound by the protocol, such a document would constitute agreed upon procedures and practices in the event of a law enforcement action. It clarifies expectations of partners, and minimizes a breakdown of trust and communication. Example: The prosecutor made it clear that she would not be prosecuting the case because there was no evidence demonstrating that Jain had been trafficked. Other than Jain, there was no other witness to corroborate what she said her aunt had done to her. If anything, her aunt’s husband and friend were willing to testify on her aunt’s behalf that Jain was treated well and was never treated like a personal servant in the home. Only one person saw Jain’s disheveled appearance the day she escaped to the temple, and that was

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after the fact. However, Jain’s immigration attorney felt that there was still sufficient evidence to submit a T visa. Jain also cooperated with the police in her statements, and the person at the temple who saw her was willing to write a declaration in support of her T visa application.

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These scenarios illustrate several concerns addressed above. While the definition of human trafficking as set out in the various criminal and immigration statutes is generally consistent, differences in both standard of proof and interpretation exist. Law enforcement may not consider a case to meet the elements necessary for criminal prosecution, but and may not consider an individual a victim of trafficking based on these standards; however, a survivor may still be able to make a case for eligibility for a U or T visa. To assume that the definition required for a criminal case is the only relevant definition is to approach human trafficking on one track as opposed to the multi-disciplinary set of tracks intended by Congress. Thus, as the legal advocate your involvement in screening survivors at the time of law enforcement identification is more than a good practice. It is essential to protect this multi-disciplinary approach to human trafficking.

§ 8.6 On-Site Intakes

In some cases, persons at the scene of a law enforcement action will not readily identify as survivors, as a result of fear of the traffickers, in order to protect their traffickers, or because the concept of human trafficking is unfamiliar. In these situations, you and your service provider partners should offer the apparent survivors information on their rights in the United States, the protections available to them and resource information such as hotline numbers. Do not expect that every survivor will want to be “rescued” or provided services. Sometimes the ties that bind the traffickers and survivors are very strong, so all you can do is provide information. Be sure to provide all potential survivors with a toll-free means of contacting you in the future if they decide that they do want to discuss the situation in further detail or accept your offer of assistance. You may also want to alert your own agency receptionist or front-line staff of the possibility that individuals related to this law enforcement action may contact your office in the following days or weeks to minimize the chance that the survivor’s attempt to reach out for help is overlooked. The role of providing this information falls more naturally in your purview, since law

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In law enforcement actions where potential survivors are discovered, an on-site assessment is conducted in an effort to determine of those present who are survivors, traffickers and potential witness. If possible, the assessment process should include you. Even when law enforcement is careful to screen every person present, the definition of who is a survivor may differ between you and law enforcement. If you are not present to speak with the survivor at the outset, that person may disappear or return to the trafficker before you can explain the options she has. As discussed, your conversations with the survivors can be protected under attorney-client privilege; thus, it makes sense that you are involved in the screening rather than your case manager partners.

enforcement will be focused on securing the site and determining if a crime has been committed and preserving any relevant evidence.

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If your agency or coalition is one that provides on-site intakes, you may want to create protocols regarding these intakes.1 Similar to protocols on notification and presence of advocates on-site, the creation of protocols regarding on-site intakes can prevent confusion and tension among team members. As noted above, each team member will be screening for specific purposes and will want to ask the survivor(s) questions. In addition, it may be helpful to have a prepared “script” for all members of the team that has the information that each member will provide to the potential survivor, such as an explanation for who you are, why you are there, what your role may be, and more. This script can help ensure that the information each possible survivor receives is consistent throughout your team. Remember that the potential survivor will be meeting with numerous individuals and will be on the receiving end of a massive amount of information. Your ability to begin building a level of trust with the survivor will be strengthened if you make certain that the provision of easily digestible and reliable information is being communicated by you and your team from the very start. A protocol regarding on-site intakes will need to address how to prioritize the interviews, which team members should be present in various stages of the interviews, who takes lead in conducting the interviews, and what parameters need to be in place for interviews. In theory, criteria can be established to assist in prioritizing interviews of the survivor. For example, if the greatest concern is the health and welfare of the survivor, then case managers should perform an immediate needs assessment. If safety of the individual and others are at risk, law enforcement may need to question the survivor first. And if the survivor is being pressured to allow the trafficker’s attorney to represent her or the trafficker is being detained by law enforcement or immigration, then the legal advocate should screen her and advise her of her rights initially. The presence of team members in various stages of the interview and the parameters for interviews will depend on issues such as confidentiality. The attorney will to meet privately with the survivor in order to preserve attorney-client privilege. This may be difficult to arrange if the facility does not lend itself to private conversations, but the protocol should at least acknowledge that during these interviews no other team members other than a language interpreter should be present. In screenings by law enforcement, the team may want to include an attorney or case manager to provide support to the survivor. Law enforcement may have concerns about participants being served with subpoenas to testify in a criminal proceeding. These concerns should be discussed, weighed and decided in advance. One point worth noting is that some law enforcement may not want you to interview or screen individuals discovered in a law enforcement action or raid; they may only want you to

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In San Francisco, the coalition discontinued on-site intakes for a period of time when staff resources became scarce. On-site intakes can be time-consuming, resource-intensive, and difficult to adequately staff, especially if the number of potential survivors is relatively large or if the language needs of the survivors are challenging to address. Eventually, the San Francisco coalition re-initiated on-site intakes on a case-by-case basis and based on a consensus agreement of all coalition members.

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make yourselves available to individuals whom law enforcement has already designated as victims. Other times, they may only want service providers to operate as interpreters for law enforcement. However, it is worthwhile to strongly encourage law enforcement to provide access to all the individuals, victim designees as well as those not identified as victims, for you to conduct your own assessment. You should remind law enforcement that allowing this uniform access can help defuse any potential argument that victim-witnesses have been enticed in any way to assist with a criminal investigation or proceeding. It should also be made clear to law enforcement that service providers roles are never to operate solely as interpreters for law enforcement; rather, they are there with language support to offer services to potential victims. Moreover, as mentioned earlier, some victims may not initially be willing to provide information to law enforcement or a government agent whereas they will be willing to share some information with a service provider. For all of these reasons, if you are making your services available onsite, you must keep an eye on protecting the integrity and independence of your team’s judgment, decisions, and services.

The other consideration is the interpreter. Interpreting in these circumstances is already intense and exhausting. If the interpreter is asked to facilitate communication in multiple interviews, the interpreter will become less effective. There are many considerations and scenarios for on-site interviews, and thinking through the process and a protocol in advance is beneficial.

§ 8.7 Assessment Assessment of immediate needs of survivors and preparations to meet those needs ideally should take place as much in advance of a law enforcement action as possible. If law enforcement agencies have been conducting undercover investigations of a potential human trafficking case, the officers or agents may have some information about immediate needs of the survivors once they are removed from the trafficking situation. Some obvious needs are emergency shelter, food, language/cultural support, clothing, and personal hygiene items. Other needs may not be identified until after the survivor(s) are out of the trafficking situation. During screening and assessment of survivor(s), the trafficking team may discover that they have not had access to medical or dental care for an extended period of time and several survivors have dental and medical conditions, e.g., gum disease, infected wounds, or diabetes which need immediate attention.

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Finally, the protocol can address which of the team members should conduct which part of the interviews. Clearly case managers need to ascertain needs such as shelter, medical and other needs. While you as the legal advocate or law enforcement can ask these questions, it makes sense that if a case manager is present that person assess first-hand the condition of the survivor. In the event of multiple interviewers, efforts should be made to avoid creating a feeling of interrogation and intimidation. Keeping the numbers of persons asking questions and present during the interviews to a minimum will make the interview environment less stressful for the survivor.

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Federal victim witness programs frequently have some funds to assist with meeting emergency needs. For example, the FBI may be able to assist with emergency shelter, food and clothing. Some agencies in the coalition or task force may possess empowerment funds that can be used for emergency medical, dental or mental health treatment or can be used to buy phone cards so that survivors can call their families to let them know they are safe. An assessment of immediate needs can be conducted by any member of the trafficking team, but should include the primary case manager, since it will be the case manager who will activate the service providers’ network.

§ 8.8 Protecting Shelter Anonymity

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Shelter anonymity is part and parcel of protecting the safety of the survivor. The success of domestic violence shelters has been the strict enforcement of rules regarding nondisclosure of shelter locations. For some human trafficking cases, the anonymity of shelter is crucial. Human trafficking is a crime committed not only by individuals, but also large criminal organizations. In many cases of human trafficking, the traffickers are well-organized and ruthless. The minimal value they place on human life is obvious from their willingness to buy and sell human beings. Thus, anonymous shelters are vital to the safety of some survivors. You may also choose to cite to state and federal laws protecting shelter anonymity and what type of actions may be enforced at a shelter. Both the 1984 Family Violence Prevention and Services Act (FVPSA) and the 1994 Violence Against Women Act (VAWA) bars any shelter, rape crisis center, domestic violence program, or other victim service program that receives its funding from disclosing any information to anyone about a victim receiving services, including information about the location of the victim.2 In California, California Penal Code 273.7 explicitly makes it a misdemeanor if anyone “maliciously publishes, disseminates, or otherwise discloses the location of any trafficking shelter or domestic violence shelter or any place designated as a trafficking shelter or domestic violence shelter, without the authorization of that trafficking shelter or domestic violence shelter.” Enforcing shelter anonymity may be especially in cases where your client may be at risk of detention by ICE or the police due to some misunderstanding. Example: Lali connected with a confidential domestic violence shelter where she went to stay. At the shelter, she met a case worker that spoke her language. She began to divulge why and how she had come to the United States, and how her trafficker, a diplomat, was looking for her. The diplomat called the Department of State, who then asked ICE to assist in finding the supposed “domestic worker that had made death threats, stole $5000 in jewelry, and ran away.” Before the shelter could connect Lali with an attorney, Lali received a call from the diplomat and an ICE agent. Lali gave the phone

2

Family Violence Prevention and Services Act (“FVPSA”) Pub. L. No. 98-457, § 303(a)(2)(E), 42 USC § 10402(a)(2)(E) (1984).

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to the case worker at the shelter, and the diplomat and ICE demanded to know the shelter location so they could come “talk” to Lali.

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VAWA confidentiality laws prohibits immigration enforcement actions at specified locations, including but not limited to domestic violence shelters, rape crisis centers, victim services program, family justice center, courthouses where an individual is appearing for a civil or criminal case related to domestic violence, sexual assault, trafficking, or stalking. Any immigration enforcement action at these locations must be disclosed as a fact in the Notice to Appear and in immigration court proceedings, and must certify that such action did not violate § 384 of IIRIRA (hereinafter referred to as “enforcement limitations”).3 VAWA 2005 also extended other VAWA Confidentiality and Immigrant Victim Safety Protections to eligible Tvisa applicants.4

Example: As the first interview between the survivor and law enforcement personnel concluded, the FBI agent directed my client to write down her address where she was currently living. When I reminded the agent that she was staying in a confidential location that could not be divulged, the agent was dismissive and ordered my client to provide her address. Immediately, I interrupted: As you know, she is residing in a domestic violence shelter in the Greater Bay Area. The shelter’s location is confidential, but you can always reach her through me—you have my cell phone number, my email, and my work phone number. I tried levity to break the increasing tension, joking that while I had broken laws when I was a teenager, I was trying to keep on the straight and narrow and did the FBI really want me to commit a criminal act by divulging the address of a confidential shelter? The agent found my attempt at wit undesirable to say the least. The agent’s eyes widened and her voice was an explosion of incredulity and frustration and she went from righteous anger to threats: We can’t just have her on the loose, not knowing where she is! We need to know her exact location, for her own safety! She’s still a flight risk as well, and we can have her designated as a material witness and detained in custody if you would prefer!

3

8 USC § 1229(e). If these laws are violated by a Department of Homeland Security employee, a complaint can and should be filed with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties (CRCL). For more information on the process of filing a complaint, see instructions at www.dhs.gov/violence-against-women-act-vawa-confidentiality-provisions-dhs. 4 Violence Against Women and Department of Justice Reauthorization Act of 2005 (“VAWA 2005”), Pub. L. No. 109-162, Title VIII, Subtitle B, § 817 (2006).

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Although it may be frustrating for members of the trafficking team to have no information on the exact location of a client or witness, the rules of nondisclosure of a shelter’s location must apply to the team as well. Arrangements to meet with a client can be made through the case manager, and correspondence can be routed through the shelter program’s post office box or main office address. In cases of insistence by law enforcement that it have the location of the survivor, the response should be to insist, as in domestic violence cases, that this information remain confidential. This may initially put some strain on the team dynamics, but in time can become an accepted and expected practice.

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The tension in the room was increasing and my client looked frightened at the escalation of the discussion. I asked her to have the prosecutor join our discussion and repeated that I was confident that we could find a workable solution that would satisfy her need to account for my client’s whereabouts without compelling anyone to give up the location of the shelter. Subsequently, I offered, and the prosecutor and agent accepted, a scheduled daily telephone call that we could have with the agent at the agent’s convenience but continued to state flatly that the location of the shelter was confidential—even I had no idea what the address was and I had been working with the shelter for over six years. As we walked out of the federal building, I patted my client on the arm and reassured her calmly that no one was angry with her, her case was not hurt or harmed in any way by this discussion, and that we had worked it out. Not all survivors will need to be housed in anonymous shelters for their safety. As noted above, some may be comfortably placed in transition shelters, religious homes, apartments, and homes of foster families. These options for housing survivors will not require such rigorous security procedures, but all individuals and institutions participating in housing survivors should be aware of any recommended safety precautions. Some families or agencies may request that correspondence not be sent to their homes or shelters, but instead be sent to the case manager’s office or a post office box. Similarly, they may request that their address not appear on any paperwork. In this situation, both the San Francisco and South Bay region immigration attorney lists her agency’s address for correspondence, and the case manager’s address as the residence.

§ 8.9 Relocation of Survivor(s) In some cases, the safety of the survivor(s) dictates relocating a survivor out of the city, region or state. Generally such a decision is made at the initial screening or needs assessment, but it may be that at some point the team or the survivor learns of the trafficker’s attempts to locate the survivor. If the survivor has attempted escape from his trafficker in the past and has been violently or forcibly returned to captivity by the trafficker, it might make sense to relocate the survivor out of the region or state. Working with other human trafficking task forces and coalitions, your team can identify a region that is able to provide services to the survivor. Several considerations play into the decision to relocate survivor(s). One reason to have the survivor remain in the area is to facilitate law enforcement interviews and testimony during the criminal investigation and trial. If the survivor has filed a civil suit or a wage and hour claim, she may need to remain in the area to pursue those remedies. Otherwise, the survivor should have access to local counsel who can coordinate with the attorneys running the civil case where the original trafficking took place. Example: Aliya fled New York State away from her traffickers with the help of relatives in California. In California, she was able to find an attorney who helped her file for a Tvisa and find other pro bono attorneys to file a civil suit for her in New York against her traffickers. To prevent her traffickers from finding out that she had fled to California for a while, only her New York attorneys appeared on the case. Her California attorney

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would still coordinate with her New York attorneys on writing the complaint, filing the case, and doing settlement negotiations until the case was finally settled. Her New York attorneys mailed the settlement checks to her California attorney, and her traffickers never discovered that she had already moved to California.

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Another consideration is the existence of a support group for the survivor. If family, friends or community are important to the survivor, it may not be the best solution to relocate her. Thus, any decision to relocate survivor(s) should involve input from the team and the survivor. The best interests of the survivor should trump any other needs in the final analysis.

§ 8.10 Separation from Traffickers

Because of the emotional and psychological ties that bind the trafficker and survivors are very strong,5 the team members who first encounter survivors of human trafficking should make sure that the survivors are separated from their traffickers. The separation should occur as soon as the distinction can be determined. Observation of the dynamics can assist in not only identifying the traffickers, but also any workers/survivors who have been assigned responsibility by the traffickers for keeping the others in line and for reporting to the trafficker the conversations and actions of the other survivors. Example: The local police department received a tip about five women in a hotel involved in commercial sex work through on-line advertising. Several vice police officers responded to the hotel with two case managers and interpreters. The initial interviews and assessment determined that the traffickers were not present at the hotel.

5

Note: The Stockholm Syndrome is not uncommon to situations of human trafficking. In her groundbreaking book, Loving to Survive: Sexual Terror, Men’s Violence, and Women’s Lives, Dr. Dee Graham, one of the earliest Stockholm Syndrome researchers, identified four characteristics that typify those suffering from the syndrome: 1) Perceived threat to survival, and belief that the captor is able to carry out the threat at any time; 2) A captor carries out a small act of kindness, and the captive perceives it as redemptive; 3) The captive is isolated for a significant amount of time, such that the victim can only see through the captor’s perspective; 4) Perceived impossibility of escape. http://center4familydevelop.blogspo t.com/2010/02/stockholm-syndrome-what-it-is.html.

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Traffickers exert significant emotional and psychological influence over survivors. As discussed previously, some survivors feel obligated to traffickers, especially in debt bondage situations. Traffickers frequently instill fear and terror in survivors by harming and/or threatening them, by threatening family members, by isolating and demeaning them, and by creating an “us” versus “them” scenario. Through this latter control mechanism, survivors are made to believe that the only people in their present world whom they can trust are the traffickers themselves. Often the traffickers are from the same community in their country of nationality, so the traffickers speak the same language, follow many of the same traditions, and know many of the same superstitions and taboos. Traffickers tell their workers that the outside world wants to harm the survivors or at the very least will not understand them. Thus, the survivors are made to both fear and depend on their traffickers.

The women were taken to a room where the case managers and interpreters began to talk with them. During the conversations, one of the case managers noticed that four of the five women frequently looked at the fifth woman before answering. The fifth woman would speak to the others in a very low voice or eye the others meaningfully. The case manager immediately stopped the process, contacted the officers and asked that the fifth woman be removed from the room. Unfortunately, it was too late. Even after the fifth woman was removed, the other four became less talkative and insisted they were working voluntarily. The case managers provided rights and resource information to the remaining four women, before leaving the premises.

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In the above example, the separation of the woman in charge did not occur before she was able to scare or warn the others not to talk. Sometimes it is difficult to identify the person in charge, especially if he or she is a worker themselves. In these cases, information from undercover operations may make the process easier. Otherwise, observation of group dynamics may be the only clue. Even though the person in charge may be a survivor herself, she should be separated from the other survivors. She should be provided services as a survivor, but should be assisted separately, housed separately and not allowed to interact with other survivors in order to prevent her exercise of influence over the others.

§ 8.11 Debriefing as a Team One very useful strategy that was implemented after one of the largest law enforcement actions in the Greater Bay Area, Operation Gilded Cage,6 was a team meeting that included both law enforcement agencies and the service providers that were present on-site and that conducted preliminary intakes with all the potential victims. The purpose of the meeting was to debrief about the operation—both from the law enforcement perspective and the viewpoint of the participating service providers; to go into detail about what worked in the collaboration, what needed improvement, what immediate victims’ needs were still unmet, what issues were on the horizon and how to meet them in a cooperative fashion. Among the positives was the fact that the advocates had been able to mobilize nearly three dozen advocates, including case managers, language support, attorneys, and counselors, to conduct on-site intakes of nearly 100 individuals. Another positive was the provision of private rooms and space by law enforcement for the advocates to work and conduct their intakes so that we could conduct up to five concurrent interviews simultaneously. The negatives were plenty as well: survivors were nauseous after being provided only fast food for over four days, needed a change of underwear, and were desperate to contact family members back home but had been unable to do so. But the overwhelming significance of such a meeting was the ability of the diverse group to have a constructive, honest, albeit difficult, exchange of ideas and feedback that actually resulted in positive change that was observable in future cases. If at all possible, it would be worthwhile to

6

See “San Francisco Brothel Owner Sentenced to One Year in Prison for Money Laundering,” available at www.justice.gov/tax/usaopress/2007/txdv07Lau030707.pdf. See also “Alleged Sex-Trade Ring Broken Up In Bay Area/Police Say Koreans In Massage Parlors Were Smuggled In,” San Francisco Chronicle, July 02, 2005, byline: Jaxon Van Derbeken, Ryan Kim.

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suggest or support such a post-operative meeting; at worst, you may need to suggest it repeatedly before it happens and at best, you may meet and be able to move forward with the working relationships and overall capacity to better serve survivors in the future.

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Even with cases involving just one potential victim, it may always be worth debriefing the case with your service partners and law enforcement. This can be done through regular check-ins and case rounds at monthly meetings. This serves to help ensure that should conflicts arise in the future, that there is a healthy conflict resolution process in place and that all stakeholders in the case do not feel misunderstood and unhappy, even if there are disagreements on an individual case.

PART TWO: WHEN SERVICE PROVIDERS OR GOOD SAMARITANS ARE THE FIRST POINT OF CONTACT When survivors of trafficking in persons are identified by service providers, attorneys, or Good Samaritans, the protocols and procedures are similar but not exactly the same. One major difference to keep in mind is that a report of the situation to law enforcement will be critical if your client wants to apply for certain benefits and this is explored in further detail below. Examples of how this type of identification occurs are illustrated below.

Example: Mandy made an appointment to speak to an immigration attorney. She had a question about immigration options. Her original option, a family-based petition, was no longer viable, and she wondered if she had any other possible ways to remain in the United States legally. The attorney proceeded to ask the standard questions about education and employment skills, family members with legal status, prior contact with immigration, manner and date of entry to the United States, country of origin and purpose for coming to the United States. In the process of speaking with Mandy, the attorney learned that Mandy’s distant relatives had brought her as a minor to the United States with promises that she could go to school in the Unites States. Instead, the relatives made her work long hours without pay, while telling her she was too old to go to school. After more questions, the attorney determined that Mandy had been trafficked into the United States for forced labor. The attorney spoke with Mandy about human trafficking and visa options for survivors of human trafficking, as well as the process of reporting the trafficking to law enforcement. Mandy indicated that she wanted to proceed with the visa applications, so the attorney opened a case file and contacted the principal case manager to assess Mandy’s needs for social services and support. Example: Silvia was brought into the shelter by a friend because of violence she had been experiencing in her home. The shelter initiated services for Silvia as a survivor of domestic violence. At a meeting with her case manager, Silvia revealed that she had been forced to work for her relatives and that they beat or threatened her when she did

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§ 8.12 Scenarios in Which This Occurs

not do the work to their satisfaction. Suspecting that Silvia might be a survivor of human trafficking, the case manager contacted an immigration attorney to screen Silvia further to determine if in fact she is a human trafficking survivor.

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Example: Lin had not been allowed to leave the home where she worked since her arrival in the United States. Occasionally she was allowed to go into the back yard or front yard to cut the grass or water the plants, but always under the supervision of her employer or a family member. Sandy, a neighbor, noticed this pattern and thought it odd. Sandy began keeping notes of how often and under what circumstances she saw Lin. One day she noticed Lin in the front yard alone. Sandy casually approached Lin to introduce herself. Lin would not talk to her and looked at the house nervously. Sandy spoke a little Mandarin from childhood and told Lin that if she ever needed anything, to let her know. One morning someone knocked lightly on Sandy’s door. Lin stood at the door with a plastic bag. She looked terrified. She asked if Sandy could please help her because she was afraid she was having a heart attack. Sandy drove Lin to the emergency room, where a doctor examined Lin. He found evidence of previous injuries, which she said she got at home. Concerned about domestic violence, the doctor contacted a local domestic violence advocate. The advocate asked Lin some questions and became concerned that she was in fact a survivor of human trafficking. The advocate contacted the immigration attorney to screen Lin. Example: Monica noticed that the new worker, Alicia, seemed sad and tired all the time. Monica was supposed to show Alicia the ropes around the workplace. Although Alicia seemed like a hard worker, Monica noticed that sometimes Alicia would just space out or she would find Alicia crying. At first, Monica didn’t want to be involved. It’s not like she had proper immigration documents here either. Maybe Alicia was just stressed out over the same things Monica was stressed out about. But a few times Monica noticed that Alicia didn’t bring her lunch to work, but also didn’t have enough money to buy anything to eat. Twice, Alicia asked Monica for sanitary napkins. Alicia didn’t seem like a spendthrift. Monica asked Alicia, Where is the money you’re making from this job going? Why can’t you ever afford anything? Why are you sad all of the time? Alicia broke down and began to tell Monica about the person who forced her to get this job and would take all of her money. These scenarios are only a few examples. Each case is unique, but generally the survivor seeks assistance for a related or unrelated need, or a service provider or Good Samaritan encounters a survivor and has the presence of mind to seek assistance for her.

§ 8.13 Activation of Service Providers Once a service provider becomes aware of a human trafficking survivor through their own encounter with the survivor, another agency referral or referral from a Good Samaritan, the service provider should contact the coalition or task force service provider point person. That point person will request basic information about the survivor such as gender, age,

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language/culture and safety concerns. The point person will begin to activate the network of service providers, putting agencies and resource providers on notice of the identification of a new human trafficking case.

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The activation of the service providers can utilize the phone tree discussed above. The difference is that at some point either the point person or you will need to report the trafficking incident to law enforcement. Please note that it is crucial that if the point person is not an attorney and whose communications are not protected by an absolute privilege such as the one protecting attorney/client communications, the point person should conduct only a minimal screening. The screening as to the facts of the trafficking should be very limited, since case managers are covered only by very limited confidentiality protections. More important than screening for facts of the trafficking is assessing the survivor’s needs and activation of the service providers’ network, as well as identifying qualified interpreters to assist the team. If the survivor has emergent needs, such as housing or health care needs, the network should address these first. Simultaneous with the assessment and activation of the services network, the point person should contact you as legal immigration advocates. You are able to more thoroughly screen the survivor regarding the circumstances of his trafficking. You can also inform survivors about any statutes of limitation and resources for other legal representation (e.g., civil or criminal representation), as well as advocate on behalf of your client.

This latter process also permits a survivor to decide if and when to report their trafficking to law enforcement. In a “victim-centered approach” the survivor’s ability to control her life and to make decisions is crucial. Information is key to that decision, and you as her advocate can provide detailed information on what to expect from reporting the incident. Again, remember that you should not make promises you cannot keep or statements you may have to retract. For example, you cannot promise your client that she will not have to testify as a witness in a criminal trial. While many human trafficking prosecutions end in a plea, some cases do go to trial and do require the survivor to take the stand and testify. Thus, you can explain the general process, but avoid making any promises.

§ 8.14 Report to Law Enforcement If your client has not already been in contact with law enforcement, the decision to report a trafficking incident to law enforcement will ultimately be your client’s decision. Many clients

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The point person may choose to contact law enforcement immediately on identification of a potential human trafficking survivor, especially in cases where others are being held, where the survivor or others are in danger, and when minors are involved. Outside exigent circumstances, you may wish to wait to contact law enforcement and report the trafficking until after you have had an opportunity to meet with the survivor, establish some level of trust and explain the role of law enforcement and the process of reporting to your client. In these circumstances, you have an opportunity to de-mystify and de-stress the process of reporting the trafficking, which allows the survivor to feel more comfortable with notifying law enforcement.

are fearful or concerned about reporting the incident. Traffickers use the threat of detention by law enforcement as a mechanism to control the survivor. Some of your clients only want out of the trafficking situation, but do not want to get the trafficker in trouble, especially if the trafficker is a respected person in their community back home, or if the trafficker is family or a family friend.

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When you discuss reporting the trafficking incident to law enforcement with your client, explain that human trafficking in the United States is a crime, that the U.S. government including the police wants to prevent this from happening to others, and that the criminal process (investigation and prosecution) may be very different in the United States than in the survivor’s country of origin. Explain the process and differentiate between criminal, civil, and immigration processes and they may affect each other. Let your client know that she is being asked to help law enforcement. Do not make promises over which you have no control, for example that the case will settle and she will not have to testify or that she is only a victim/witness and will not be charged herself. There will be survivors who will not want to report their trafficking, for a variety of reasons—fear, a sense of obligation, or a desire not to be involved in a legal proceeding, are just some of these reasons. There will also be cases that may pose significant risks to survivors if the trafficking is reported to law enforcement. You will want to discuss these risks with your client and respect her decision to report or not report her trafficking to law enforcement. Let them also know the effect of lapsed time in reporting—the ability for a client to pursue certain legal remedies or see certain outcomes may be affected by their willingness to report a case later (e.g., one year from now versus reporting one month from now). If your client chooses to report the incident, the next step is to contact local or federal law enforcement. At this point you will need to decide which law enforcement agency to contact and how to contact that agency. If your area has a local task force, it may be that the task force has designated a point person who will triage the case and forward it to the appropriate law enforcement agency. If not, then you may decide to contact the law enforcement agency most familiar with human trafficking cases in your area. If you have an established relationship with the U.S. Attorney’s office or FBI or local police department human trafficking unit, then you may feel most comfortable reporting the case to that agency. You may want to report to civil law enforcement instead of criminal law enforcement, especially since certain agencies such as the Department of Labor and Equal Employment Opportunity Commission have the ability to certify certain immigration visas and take legal action against the traffickers as well. Unless the case has already been reported to a law enforcement agency and you want to continue to work with that agency, it might make sense to report cases consistently to the agency most familiar with human trafficking cases and/or with which you have a professional relationship. You also need to understand the protocols of reporting cases based on the jurisdiction of where the criminal activity may have occurred. If you are working with a client in California, for example, but the crime occurred in Houston, Texas, you may want to ask your local task force contacts or nationwide networks (such as members of coalitions like the Freedom Network) for law enforcement contacts in Houston.

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§ 8.15 Mobilizing Your Team Once the service provider network is activated and various agencies are recruited to meet the needs of the survivor, someone will need to coordinate these efforts. For both the San Francisco/East Bay region and the South Bay region, it is the immigration attorney that takes the lead for the service provider team generally. One reason for this is the immigration attorney is required by nature of the T visa to work with both the client and law enforcement. In both the San Francisco and South Bay region, the immigration attorney works closely with the principal case manager who is coordinating the various social services needed to ensure all needs of the survivor are met. If possible, the service provider team should meet or talk regularly to assess efforts to assist the survivor, to address new needs and to ensure work with the survivor is complementary and not conflicting. For example, if your client tells you that she is suffering from headaches, that information needs to get to the case manager so she can set up an appointment with a doctor. A counselor may be able to let the team know that the survivor has new stress in her life that may be triggering the headaches. If the new stress is the possibility of having to testify in a criminal proceeding, the attorney and case manager can each talk to the survivor about options, as well as providing information to de-mystify the process. As discussed, all service providers need to remain on message when working with the survivor. Information given to the survivor by anyone of the team must be the same or the

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The method for reporting cases may vary. The agency may have a form it needs completed and sent by facsimile or email. If you have developed a working relationship with a law enforcement agency, you might be able to pick up the phone and call to report the incident. If possible, create a short letter with very minimal information to report the trafficking incident. See Appendix F: Initial Letter to Law Enforcement. In San Francisco in the past, several service providers use a preliminary intake form, such as the one attached as Appendix G: Sample Preliminary Intake Form, as the initial “report” document to law enforcement. This initial document can serve as secondary proof of cooperation with law enforcement for purposes of a T visa, as well as a method of reporting the human trafficking. Requirements for T visas are discussed more extensively below. If you do report the trafficking incident in written form (email, facsimile or letter), remember to keep the information minimal. As discussed above, law enforcement is required to turn documents over to the attorney for the accused and many of these documents may also be turned over in civil discovery, so you will want to avoid unnecessary information. Because of this, currently, in San Francisco, preliminary law enforcement reports are made by telephone calls by the attorney to the officers or agents briefly summarizing the case. The attorney then sends an email and/or letter to the law enforcement individual memorializing and tracking that the report was made to set up an interview with the client if law enforcement is interested in the case. If law enforcement on the telephone declines to interview the case, the email and/or letter will contain further details tracking that a report was made. This is to help support evidence later in an immigration application and for records that a report to law enforcement was made without over divulging in details

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survivor will get confused at best or start to distrust one or more of the team members at worst. Conversely, do not allow law enforcement and/or the client confuse information and undermine trust relations between legal and social service providers.

§ 8.16 Identifying Emergency Needs (Safety, Health, Family Safety, Shelter) The point person or the service provider will want to complete a needs assessment as soon as possible after identification of the client as a human trafficking survivor. The South Bay region has created a standard form that agencies can use to assess needs. See Appendix C: Crisis Contact Form – Needs Assessment. Once the emergency and short-term needs of the survivor are identified, the case manager can begin to set up appointments and access resources for the survivor.

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If the needs are unique, it may mean the service provider team as a whole will need to work with the case manager to find services to meet those needs. Emergency needs may not be identified immediately. For example, mental health or health issues may manifest over time. Thus, regular assessment of needs should be a part of the service model.

§ 8.17 Good Samaritans A Good Samaritan may be the first person that the survivor encounters outside of the traffickers. The Good Samaritan could be a neighbor, an acquaintance of the trafficking survivor, or a stranger that the survivor makes contact with at some public place. This individual may be the trafficked person’s lifeline to the idea that the trafficking situation may be or has been wrong and that there might be help available to the survivor. The Good Samaritans that we have met through our trafficking clients have been amazing in their generosity and willingness to aid a virtual stranger in need. But no matter how helpful, kind, or generous the Good Samaritan may be, it is important to keep in mind at all times that the relationship between your client, the trafficked person, and the Good Samaritan, can change at any time. It is a relationship fundamentally founded on an unbalanced power dynamic: the victim has little or no resources and needs the assistance of the Good Samaritan immensely while the Good Samaritan may have the resources and/or will to initially help someone in urgent need but may not realize the extent and complexity of the trafficking situation or the trafficked person’s needs. The imbalance of the relationship is not conducive to a healthy relationship for the trafficked person, with potentially tragic results for everyone involved. Example: It was her birthday and her one day off during the month. Tanya thanked Mary again for bringing her to the baseball game and the fancy restaurant afterwards. No one else during her time in the United States had been so kind to her except this woman who lived across the road from the house where Tanya had been brought by her employers two years ago. She had no ability to repay Mary’s kindnesses and generosity,

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but Tanya tried to communicate her gratitude to Mary with her words. A few months later, Tanya would call Mary when she had nowhere else to go, no one to turn to, when her employer had beaten her yet again and threatened her with prison and deportation if Tanya didn’t do exactly what her employer wanted. Mary took Tanya into her home, gave her clothes and the resources to call her family back home and even found an attorney for her through the internet. So when Mary first asked Tanya to start earning her keep by cleaning the house, doing some cooking and laundry, Tanya was happy to be able to do something in return for all the nice things Mary had done for Tanya. And when Mary had asked Tanya to help care for Mary’s critically ill mother, Tanya was again touched that Mary felt that they were close enough that Mary could ask Tanya to do things like wash her mother, give her injections, change her clothes and even change the diapers that Mary’s mother had to wear now that the illness was so terrible. If she was tired all the time from being on call for Mary’s mother, it was so little compared to how much Tanya owed Mary, she thought. Sometimes she thought that she’d like to move into her own place and have some privacy rather than sleeping in the mother’s room, especially now that she had her work permit and could find work of her own choosing and make her own money. But how could she leave Mary? She was sure that Mary would be terribly hurt and feel that Tanya was betraying her if she moved out.

These situations are not rare and we have seen relationship after relationship between survivor and Good Samaritan end in a negative fashion for a multitude of reasons. Therefore, at a minimum, you should encourage your client to a) keep private the communications that you two share regarding her case and to not share this information with the Good Samaritan; b) establish a living situation that is separate and apart from the Good Samaritan; and c) develop relationships with other individuals that the survivor can trust, socialize with, and with whom she can establish friendships on a more equal or balanced footing.

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Example: Ashley came to my office with Kim, the person who had stood up to her trafficker when she fled to the church for sanctuary. Kim had been able to get Ashley’s passport back, and she and her family were taking good care of Ashley for free at their home. Upon arrival at my office, Kim’s face turned blank when I told her that I would be conducting the legal intake with Ashley with another interpreter, and that Kim could come back in two hours to pick up Ashley. Kim began to talk about how Ashley was child-like, didn’t know what she wanted, and wanted to test our interpreter’s language skills. Kim eventually relented and left the office for us to conduct the intake with Ashley. About half an hour into the intake, Kim came back to the office and repeatedly demanded that Ashley leave with her because Kim had to work. No, Kim couldn’t wait, and she needed to leave NOW. When shelter was mentioned, Kim exploded and dragged Ashley out of the office. For the next month and a half, no one could get in touch with Ashley, who had no cell phone. Kim would not pick up her cell phone or call anyone back. Eventually, a police officer that had done a lot of work with Kim’s community was able to help bridge the gap, and Kim agreed to let Ashley go to a shelter and reconnect with our office. While Ashley always maintained that Kim had treated her well and never asked her to work at the house, she had begun to feel suffocated by Kim when she was living there, and was glad to go to the shelter.

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CHAPTER 9 AGENCY PREPARATION FOR HUMAN TRAFFICKING CASES

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This chapter includes: § 9.1 § 9.2 § 9.3

Scope of Representation or Services .................................................................. 9-1 Practical Tools .................................................................................................... 9-3 Media Policy and/or Protocol ............................................................................. 9-6

§ 9.1 Scope of Representation or Services Whether it is the first or the umpteenth case of human trafficking that you and your agency are handling, it is essential to confirm the specific service or services that your agency will provide in the matter at hand. You must determine if your agency is serving an individual client or playing a role in a trafficking case, what type of legal or extra-legal service(s) you may be taking on, and whether or not your assistance or role extends beyond the immediate individual client to his or her family members or friends who might be impacted by the human trafficking situation. Most, if not all, service providers who help survivors of human trafficking do not work in a vacuum or state of suspended animation, only coming to life when a trafficking case breaks. We have on-going clients and cases as well as the prospect of new clients and cases coming our way on a daily basis. That reality must inform your decision-making when it comes to whom you can help and the extent to which you can provide that help in a responsible, competent, and sane manner.

However, when law enforcement advised us that the number of victims and witnesses might be more than two dozen individuals, we recognized that, as a result of taking the cases, our resources would be stretched so thin that we would not be able to provide aid to any other human trafficking survivors during that time. We also realized that our transitional housing resources 9-1

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For example, there were several instances when the San Francisco-based coalition of service providers was informed by law enforcement that a large-scale human trafficking investigation was in progress and would soon come to a point where victims and witnesses would be brought into custody. For example, in one case, at the time that this information was provided to us, we were prepared to provide most, but not all, legal and non-legal services that might be needed: emergency shelter, access to medical examinations and treatment, clothing, food, criminal defense, immigration, and civil legal relief options, interpreters, case managers, mental health counselors, as well as access to anticipated requests such as phone cards to contact family members in other parts of the world and foreign language music, books, movies, and the like. We could handle primarily women and children survivors but had the capacity to also assist male survivors in a more limited fashion (e.g., homeless shelters for emergency shelter versus a range of different options for female survivors).

would not be able to accommodate more than 24 potential clients, especially if the survivors had family members that would be united with them through immigration or otherwise. We had to make choices, such as limiting our legal representation to emergency immigration and criminal defense needs and providing that representation solely to immediate survivors, and not family members, until the survivors’ situations had stabilized and our staff was able to accept new legal matters. We also decided to refer out all individuals who might be identified only as material witnesses and not as victims of human trafficking. Moreover, any clients who moved to shelters or elected to move to non-shelter residences in areas outside of the Bay Area needed to be connected to case management resources in those immediate areas. We have seen legal and social service providers in other areas make similar decisions in large-scale cases with many clients, especially when the clients are male or have many family members, making housing more difficult to accommodate.1 These are hard choices to make. Especially when dealing with the world of the human trafficking survivor, who has already been through extreme trauma and seems to need unconditional support until she or he has stabilized his or her situation. However, not making these choices will inevitably place service providers in the untenable situation of being unable to provide services that people rely on to people who are counting on her, including those individuals in her own personal sphere.

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Therefore, before any human trafficking case or client is taken on by any service provider or coalition, it is absolutely critical that there is a common understanding of the type of services you as an individual will provide, the type of services that your agency will provide; and who the client or clients are (e.g., the immediate survivor only, survivor plus minor derivatives, survivor plus spouse and minor derivatives, survivors and any identified witnesses with needs, etc.) As mentioned earlier, you should also discuss the additional administrative work that may arise as a result of funding requirements, such as maintaining and providing data and narrative reports to funders. You will need to decide who will be responsible for maintaining the data, for responding to requests for information from funders, and the like. As you and/or your agency become more experienced with human trafficking matters, it is likely that you will be asked to conduct trainings, provide presentations on the subject, join related task forces or coalitions on a local, regional, national or international level, and generally share your practice experience and knowledge with others such as other service providers, government officials, legislators or policy advocates. These requests are important to meet because, as a direct service provider, you will have practical and unique information that can inform policy, shape or reform the laws surrounding the issue, and help increase the promising and best practices of the entire community of service providers in what is still a relatively new area. However, meeting these requests can also be a time-consuming, unfunded task that is

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See, for example, the Global Horizons (United States v. Orian et al., Cr. No. 10–576 (D. Haw. filed Sept. 1, 2010), EEOC v. Global Horizons, Inc. et al., CV-11-00257-DAE-RLP(D.Haw. 2011), and EEOC v. Global Horizons, Inc. et al, CV-03045-EFS (E.D. Wa. 2011) (H-2A visa)) and Giant Labor Solutions (United States v. Askarkhodjaev, No.4:09-CR-00143 (W.D. Mo. May 27, 2009) (H-2B hospitality workers) cases both consisted of hundreds of victims, many of them male, dispersed across multiple states.

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simply added to the plate and drains you and your agency of already limited staff and resources. Therefore, reaching consensus on what kinds of training, r presentation, or materials requests you will accommodate is important and should be a part of the discussion regarding scope and scale of human trafficking services to be provided by you and your agency.

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§ 9.2 Practical Tools In the previous chapter, we discuss the preliminary phases immediately after discovery of a trafficked person. One of the key actions is the activation of the service provider team. Every agency on the team will most likely have its own internal procedures that must be followed before a new case or client is accepted for services. Typically, one of the first questions to be answered by any service provider is whether or not the individual meets eligibility requirements for services to be rendered to him or her. It is not unusual for funding to contain restrictions relating to geography, language, income of the individual seeking services. Your agency will need to make that assessment in order to figure out how you will be supporting the many services to be provided to the survivor, which can be resource-intensive as noted earlier. You will also need to assess the practical needs of the client: what does she need and when does she need it? A natural follow-up question is whether these needs can be met by your agency or if alternative resources are needed. Many agencies have created a modified intake form that is specific to trafficking cases and clients to answer these preliminary questions. This intake form likely already includes a list of the eligibility criteria and whether or not a potential client meets these criteria. The intake form also probably incorporates an assessment of the potential client’s needs and matches those needs to the services provided by the agency. We would strongly suggest modifying the intake form for any potential trafficking client to minimize the amount of detailed narrative. In other words, make the intake form more of an eligibility and needs “checklist” rather than an in-depth narrative report.

For example, in the San Francisco coalition, we created a specific intake form for potential trafficking clients that was a checkbox-only form that would effectively a) assess the

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There are multiple reasons for this recommendation. The details that a trafficked person can provide about his or her trafficking situation may, and often do, change as time passes. She may not remember clearly at first or she may start to recall more details more accurately later on. For many reasons, the story can change. Therefore, you do not want to have in-depth details in the very first intake, especially if the intake is conducted by a non-attorney who does not have a legally privileged relationship with the client and whose work product may be discoverable in a legal proceeding. This kind of potential contradictory information can be used by traffickers in a legal proceeding to impeach the survivor’s credibility or can even be used by law enforcement to question your client’s truthfulness or cooperation. You also may not want to dig so deeply into a survivor’s experience, which is typically extremely traumatic, in your preliminary interview. You need some information that is critical to determining if the individual is a trafficked person and if she can be assisted by your agency, but there are ways of obtaining that information in a less traumatic fashion.

social service, legal, and other needs of the individual; b) have minimal details about the person’s possible trafficking situation; and c) evaluate the eligibility of the individual for our services. A sample of that intake form is attached as Appendix G: Sample Preliminary Intake Form. Any in-depth intake questions would then be asked and answered by an attorney in a follow-up interview using an intake form designed specifically for a longer and more detailed follow-up consultation with the client, thereby protecting the confidentiality of those details for the benefit of the client. See Appendix H: Sample Legal Intake Form; see also Appendix I: Sample Immigration Intake Form. For more in-depth interviews with a potential survivor, you may find it useful to have a trafficking questionnaire prepared to cover the key elements that will determine if the individual might qualify for trafficking-related legal relief. See Appendix J: Sample Trafficking Questionnaire. Please note, however, that this type of in-depth information gathering should be conducted by an attorney in order to protect the confidentiality of the information collected.

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As resource-intensive as a new trafficking case is, your agency should be realistic when staffing a case. If you are assigned a trafficked person as a new client, and especially if the survivor is in the emergency or crisis stages, you will have to take into consideration that for all practical purposes, your time will be wholly occupied by this new client for the next several weeks. Your capacity for accepting new clients, cases, or tasks will be severely curtailed. Moreover, if you have already scheduled meetings, hearings, or other events for this same time period, these may need to be rescheduled or re-assigned to other staff until the client is out of his or her emergency or crisis phase. These dynamics can create a great deal of tension within your agency, but you can try to preempt or minimize the negative repercussions by preparing your agency before a trafficking case arises. Even if you have already accepted your first case, it is never too late to have this agency-wide discussion. Being in consensus about who will staff a case, how existing or future cases will be handled, etc., is critical since the last thing you want to deal with while you are in the middle of a trafficking case is conflict within your own agency. Once you have confirmed that the individual is in fact a trafficked person who is eligible for your agency’s services, you must determine the scope of the services that you will be providing to this individual and communicate this to your client. As we discussed earlier in Chapter 8, your agency should have a predetermined range of services that you are able to provide to eligible clients in trafficking cases and which are clearly understood by the other agencies and entities that are a part of the anti-trafficking network. One tool you should use to clearly delineate the scope of services you will provide is a written service agreement, such as an attorney-client agreement, that lays out the details of what you will be doing for your client, what you expect of your client, what your client can expect of you, and the terms of this relationship. For example, you may want to emphasize what would make you terminate your services, such as a client who fails to cooperate with her case, or the fact that the services you are providing will be free of charge until a decision is rendered on the client’s application for a T visa with follow-up services available on a sliding scale, etc. See Appendices K and L: Sample Attorney-Client Agreement A and B. If you are agreeing to represent a spouse, sibling, or other derivative of the primary client, you should strongly consider also having a form that details the joint representation, including possible options if a conflict arises between the primary client and the derivative. See Appendix M: Sample Joint Representation Disclosure and Consent Form.

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You may also want to be specific about the scope of legal work, that you may not necessarily be assisting your client with both the T-visa and adjustment, and your ability to serve them, especially for either free or a reduced amount, based on where they live.

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Also critical are documents that cement the way that you will communicate with other agencies that are also providing services to the same client, such as a written inter-agency agreements that outline which agency is responsible for which services, and that allows you to exchange information with the agencies that are a part of the service team. A written agreement between you and the client that allows you to obtain and release information to further the interests of the client should be a part of your service agreement. See Appendix N: Release of Information Form. Regular contact and communication between team members is critical from the point that you begin representing the client. Therefore, all the members of the team should be reminded of the protocols that you have established for the exchange of needed information regarding the case as it proceeds; confirm who is the point person(s) for coordination of the overall case, reiterate how and when you will be communicating about the case (i.e., a regularly-scheduled conference call); and finally, whether or not there are any immediate or upcoming deadlines, tasks, or appointments that you all need to keep in mind. One point to keep in mind is that the client is going to need certain documentation as the case proceeds and that you should start preparing those documents as soon as possible. For example, most survivor benefits will necessitate a letter from a service provider evidencing that the applicant for benefits is in fact receiving bona fide trafficking victim services. The service provider in charge of assisting with applications for nonlegal benefits on the state or federal level may want to flag this need at the outset since accessing benefits for the survivor is one of the key first steps in most trafficking cases. Therefore, a checklist of documents that you or your team may need for any specific client may be helpful to keep you on track as far as deadlines and common proof of eligibility that are part and parcel to various applications for benefits or services (i.e., proof of continued presence; proof of receipt of services from an anti-trafficking service provider; proof of filing for a non-immigrant visa; passport-style photographs for various applications, etc.)

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At this time, you should also consider discussing with your client the need for her to have a safe contact address and phone number that is kept updated through the course of your representation. Some clients may also have cell phones with monthly payment plans, and may change numbers frequently. You will want to make it very clear to your client that they need to also have responsibility in maintaining accurate contact information and contact with you. You may also ask a case manager and/or help your client to set up an email account to communicate with them on the chance that this happens. Your client should be advised of some safe techniques to communicate via email and text messaging with service providers. Furthermore, you do not want the responsibility of receiving and maintaining your client’s written communications for the long-term, especially if your scope of representation is limited to “only immigration” or “only state benefits,” etc. In California, trafficking survivors as well as survivors of sexual assault or

domestic violence can obtain a safe post office box.2 Contact information should be maintained in your files and updated as needed. Remember that even if your representation is limited to filing of a T visa application, the overall period of time that this process may entail can be lengthy, spanning months and even years; therefore you need a secure way to keep in touch with your client as time passes.

§ 9.3 Media Policy and/or Protocol As mentioned earlier, human trafficking cases can garner media attention and become high profile cases. You will need to prepare yourself and your agency for this eventuality because, while the media can be a helpful tool in your client’s individual case and in educating the public overall about the issue of trafficking, the media can also have an extremely negative impact on your case, your client, and your agency. You need to be aware of the potential pitfalls and the possible benefits of having media as a player in any trafficking case. Media as Allies in Educating the Public Print and electronic media are excellent formats for educating the general public about human trafficking. Reports, stories, editorials, and series on the mechanics of human trafficking, the scope and depth of the issue, and the toll on human lives can shed light on trafficking in persons. By raising awareness about trafficking, the media can bring a hidden practice out into the open; thus, helping to eliminate this violation of human rights.

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Media reaches individuals in their homes. Ethnic media can educate large numbers of diverse communities. Media reports can subtly, and not so subtly, pressure policy makers or other authorities to address urgent issues. Thus, media is an ally in the efforts to combat human trafficking. Increased public awareness and using media as a tool for advocacy of your client’s interests can be very effective. As such, your team may want to think strategically about how to involve media in discussions of the forms of human trafficking in your neighborhoods. Media will likely be present when law enforcement actions take place. These times present excellent opportunities to talk about the cost of human trafficking to survivors, their families and communities in receiving, transit and sending nations; the profit traffickers receive from trafficking in persons; the fact that this industry is the second most profitable trafficking industry second only to drug trafficking and tied with arms trafficking; and the ways that individuals can work to end human trafficking by supporting service providers, by recognizing signs that someone might be trapped in forced labor, and by educating neighbors and friends about trafficking.

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According to the website of the California Secretary of State, the “Safe at Home” Program is a program that allows participants to use a free post office box instead of their home address “to help them maintain their privacy when receiving first-class mail, opening a bank account, completing a confidential name change, filling out government documents, registering to vote, getting a driver’s license, enrolling a child in school, and more.” See www.casafeathome.org for more information.

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Preparing press releases, creating information brochures and drafting editorials need to be done quickly and timely. Some preparation will be possible, for example in advance of the national day recognizing efforts to end human trafficking. In some cases, law enforcement may have designated media relations persons who can handle responses immediately after law enforcement actions and during trials. Preparing in advance to work with media will make the relationship most beneficial and make things run smoothly.

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Media’s Goal: Getting the Story Once you have reached out to the media and have shown that the story or issue of human trafficking is timely and of interest to their audience, the media will want as much information as possible. Reporters will want to talk with more than one source. They appreciate written material and access to data. More often than not the media will ask to speak to one or more human trafficking survivors. This last request can prove to be a sticking point, since the media may not feel they have a story without interviewing someone who has been trafficked. On the other hand, as a legal advocate you have a responsibility to protect your clients’ confidentiality, as well as their safety. The media may offer to change your client’s name, obscure her face and alter her voice, or photograph only her hands or back. While this may be sufficient as far as safety precautions for some, for others anonymity is preferable because the fear of reprisals, re-trafficking, or retraumatization is too great.

It is tricky achieving balance between supporting your client’s decision to participate in a media story and risking disempowering your client by interfering too much in the process. You will have to take the client’s personality and capacity into consideration, on a case by case basis, every time that this situation arises.

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Even if you decide to speak with clients and explain the safety measures the media is willing to implement, there are several concerns to consider. First, your client may not feel they can refuse to speak with the media, especially if you are currently providing services. For this reason, it might be better to approach former clients who are no longer receiving services from you or your team with the request of media to interview trafficking survivors. Make it clear that their interview is not a required “payment” or “debt” they owe to you for the services you have provided for them. Second, once your client or former client agrees to speak with media, you have little control about how the story is covered, whether measures to protect your client have been implemented, and whether the recordings will be protected and destroyed if no longer needed. So much is out of your control, so it is useful to work with reporters and photographers whom you trust, with whom you have worked in the past and who are knowledgeable about human trafficking and the risks to survivors. Even in this ideal situation, you may want to try to request final approval on behalf of your client before a story is printed or aired, or request the right to review any quotes or photos provided by you or your client before they are used in a story.

At least two organizations (the Coalition to Abolish Slavery and Trafficking’s (CAST) Survivor Advisory Caucus, and Safe Horizon’s Voices of Hope)have supported survivors in forming a their own survivor leadership and support group that sends members to speak at conferences, panels, and with the media.3 These types of groups allow survivors to tell their story if they choose, to receive any speakers’ fees for their presentations, train and prepare themselves for speaking in public, and engage in legislative advocacy. The focus is on the survivors providing input back to policymakers and the public on their needs and how to better work with trafficking survivors, rather than simply asking trafficking survivors to reiterate their trauma and morbid details of their trafficking experience. Divide and Conquer As with information the team provides to human trafficking survivors, information to the community should be consistent and on message. When team members are not on the same page, information can be confusing and overbroad. Team members should be clear about the extent of information to share with media without compromising the safety of survivors, service providers, and law enforcement personnel. A concise, focused message will be less likely to be edited or garbled. Media will want to obtain as much information as possible and to cross-check the information. Thus, the reporter may contact one of your team members to ask questions about a trafficking situation, and not inform your team member that she has already interviewed other members of your team. Without prior discussions, it is possible one team member may disclose too much information, erroneous information, or confusing information. One way to avoid conflicting messages and information is to designate a media point person, who can field media requests and coordinate a media response. With one person responsible for contact with the media, the likelihood that reporters will try to contact individual team members or agencies to get a different angle on the issue will hopefully diminish although it may not disappear.

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Creating a Media Protocol and Designating a Spokesperson As part of forming and reinforcing a coordinated response to human trafficking, a task force or coalition may consider creating a media protocol. This protocol can address the issues discussed above including how to respond to requests to talk to survivors, which member of the team will be the spokesperson for the team if needed, whether the team will have a designated media point person, and when and how messages about human trafficking will be shared with the media. This protocol may be flexible, but could provide valuable guidance to all team members, since the issues of human trafficking attract the attention of the public. See Appendix O: Sample Media Protocol.

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For more information, see www.castla.org/caucus-of-survivors and www.safehorizon.org/index/what-wedo-2/anti-trafficking-program-13.html#survivor_leadership.

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CHAPTER 10 SPECIAL CONSIDERATIONS REPRESENTING MINORS, SURVIVORS IN CRIMINAL, DETENTION, AND REMOVAL PROCEEDINGS, AND WITNESSES

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This chapter includes: § 10.1 § 10.2 § 10.3 § 10.4 § 10.5 § 10.6 § 10.7 § 10.8 § 10.9 § 10.10 § 10.11 § 10.12 § 10.13 § 10.14 § 10.15 § 10.16 § 10.17

Interviewing and Communicating with Minors ............................................... 10-2 Before the Initial Meeting ................................................................................ 10-2 Interviewing Strategies ..................................................................................... 10-3 Child Protective Services (CPS)....................................................................... 10-4 Unaccompanied Refugee Minors Program (URM) .......................................... 10-5 Guardianship/Conservatorship ......................................................................... 10-6 Shelter/Foster Families ..................................................................................... 10-6 Reunification with Immediate or Extended Family Members ......................... 10-7 School/Activities/Mobility ............................................................................... 10-7 Limited Knowledge of Trafficking Arrangements ........................................... 10-8 Trust and Vulnerability .................................................................................... 10-9 Removal Proceedings ..................................................................................... 10-10 T Visas, U Visas or Special Immigrant Juvenile Status ................................. 10-10 Cooperation Requirements Vary Based on Age ............................................. 10-11 Force, Fraud or Coercion Not Required for Commercial Sex Work if under 18 Years Old .................................................................... 10-12 Family Derivative Petitions ............................................................................ 10-12 Trauma and Testimony ................................................................................... 10-13

PART ONE: MINORS AS SURVIVORS OF HUMAN TRAFFICKING In many ways planning for and meeting the needs of minor1 survivors of trafficking in persons is no different than planning for and meeting the needs of adult survivors. Both require an assessment of a trafficking survivor’s needs and the provision of services as soon after identification as possible. Both need access to legal representation and both also are best served through the team model. Having said this, minor survivors of human trafficking often have unique needs, which are frequently the focus of special agencies and programs.

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For purposes of the state and law enforcement, a minor is any young person under 18 years. For immigration purposes a “child” under INA 101(b) (1) and 8 USC 1101(b)(1) is any unmarried individual under 21 years of age. Make sure that you are clear about what laws you are working with and what age requirements are because it can be confusing. In this chapter, references to a minor will refer to the former unless otherwise specified.

§ 10.1 Interviewing and Communicating with Minors Akin to building a case with an adult survivor of trafficking, before much of the work can be done on a trafficking case involving a minor, one of the most important steps is establishing a rapport with the survivor. Meeting, communicating with, and interviewing a child survivor of human trafficking is not the same and should not be handled the same way as with an adult and should be done after you have had at least some form of focused training or self-study on issues relating to working with minors.2 While we do not claim to be experts on these issues, below are some considerations and practical pointers that hopefully can serve as a stepping-stone for advocates who will be assisting child survivors.

§ 10.2 Before the Initial Meeting Ascertain the minor’s preferred language and her level of English fluency. Ideally, you should work with an interpreter for all of your meetings with the minor even if the minor indicates or otherwise shows fluency in English. Do not assume that the ability to speak fluent English means that she can also read and write in that or any language. You should also gather some basic information about the minor’s background and home country so that you have at least a general sense of the country conditions, including the country’s history, cultural traditions, taboos, political, economic, and human rights situation. Be prepared that the minor may need more than the average number of meetings and interviews that an adult might need in order for you to gather the same type of detailed information necessary to prepare applications for relief for your client. The first meeting should be kept short and should include a simple and easy to understand explanation by you regarding who you are, what your role is, and perhaps even more importantly, what your role is not—you must establish proper boundaries with the minor so that you and he both understand what you can and cannot do for her. It is very easy when working with a minor survivor of trafficking to overstep your boundaries to your own personal emotional, psychological, or financial detriment, as well as possibly negatively impacting your client’s best interests. This is a minor who may have suffered extreme abuse—it is only human that you will feel the urge to do anything and everything within your power to make her life better. But it is important to always keep in mind that you cannot and should not become the omnipresent caregiver in his life because it is simply unsustainable. We will address this dynamic in further detail in Chapter 12: Trauma and Secondary Trauma. At the first meeting, to be repeated as needed, you should also explain why you need information and why it is important for your client to be honest, but reassure him that it



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There are several excellent resources for this type of training: National Center for Refugee & Immigrant Children conducts pro bono trainings that cover these issues in detail and can be arranged upon request nationwide; Center for Gender and Refugee Studies at UC Hastings College of Law has written materials and has expertise regarding detained immigrant children; there are also national and international resources available online for personal research and through organizations such as UNICEF, Amnesty International, Human Rights Watch, Human Rights First, Save the Children UK, Casa Alianza (Central American focus), and UNICEF.

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is absolutely all right if he does not know, does not remember, or if it is simply too hard to talk about something.

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§ 10.3 Interviewing Strategies Unlike with most, but not all adults, logical reasoning and practical considerations may not work to elicit the information you need or want from a minor survivor. You will need to explain multiple times what you are doing, why you are asking the questions that you are asking, and why it is important that these conversations happen. Common problems when working with minors include, in general: a minor’s inherent tendencies to have limited capacity to concentrate for an extended period of time, to exaggerate, to read and respond to the cues of an authority or adult figure, to desire approval and obtain permission from others, to self-blame, or to attempt to avoid punishment or perceived negative consequences. Therefore, you must be prepared to interview the client again and again and again. No meeting should be more than a few hours and you should start every meeting with a review of what you discussed in the previous meeting and end each meeting with a preview of what you will be talking about at your next meeting. You will need to dig deeper with each encounter with an eye towards ironing out inconsistencies in the statements, detecting and managing outside influences (i.e., the wellmeaning foster parent), and accepting that there will be omissions and slight inconsistencies regardless of the amount of time that you may have spent trying to get the whole story. Your written applications and any oral arguments that you may have to make should also take these inevitable gaps and contradictions into account, including providing as much context and explanation for them as possible. Think outside the box and be creative when it comes to interviewing minors. In other words, do not rely on simply asking questions and expecting answers to those questions. Make multimedia available to the minor client so that she can use drawings, pictures, photographs, models, dolls or figurines, or even music to describe his experience. For example, if you are attempting to determine the location where the minor was being held, you may want to have photographs taken of the neighborhood and the home where she was kept so that you have a visual aid for her to look at or access to a computer where you can use an online mapping tool such as Google Maps for a real-life view of the sites where he was forced to live or work. Use very simple language. Keep in mind that “trafficking,” “coercion,” “assault,” “immigration,” are typically not a part of a minor’s vocabulary. You can also use events such as birthdays and holidays to help establish timelines. You may find it helpful to write out or prepare your questions, including simplifying the language, before you meet with your minor client to keep the interview as natural and conversational as possible. Again, these recommendations are not comprehensive and cannot replace training by an expert in the field, but they are meant as a starting point for you to begin thinking and preparing for interviewing and working with a minor in building a trafficking case.

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§ 10.4 Child Protective Services (CPS) Upon discovery of minor survivors of human trafficking, the team should consider carefully whether to involve Child Protective Services (CPS) of the County’s Department of Family and Child Services. CPS has law enforcement powers when minors are found in situations of abuse, abandonment or neglect. CPS can intervene quickly, assess the risks to the minor and remove minors from dangerous situations to places of relative safety. CPS can activate networks of support services for minors, including foster care, medical and dental, and educational services. Because of CPS’ ability to move quickly and to access social services for minors that they take under their protection, the team may wish to involve CPS in cases where minor trafficking victims are discovered. CPS works to protect the minor and to act in ways it feels are in the best interest of the minor. CPS’s role and responsibilities may conflict with the larger concerns of the trafficking team. Example: A mother is trafficked into the United States with two young children ages 6 and 7 years old. The mother is forced to work long hours, leaving her children in the home of her trafficker. The children are not allowed out of the home to attend school and are frequently left unsupervised and locked in the home without access to food while their mother is forced to work. Upon discovery of the trafficking situation, CPS is called. CPS determines that the children are malnourished and were living in a dangerous situation. Further, CPS makes the determination that the mother did not protect her children, and so they remove the children from their mother and place the children in foster homes. The mother, who has lost control of every other aspect of her life, has now lost her reason for living—her children. The trafficker’s belief that if she ever tried to leave she would be detained and her children would be taken from her has proven to be true. For their part, the children are traumatized because they do not understand why they have been taken from their mother. Before they came to the United States, the children often had to fend for themselves while their mother worked to feed them.

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In the above scenario, the team serving the trafficking survivors needs to determine if involvement of CPS will mean separation of minors from parents, who for reasons beyond their control were not able to protect their children. This separation may in effect punish the family further falling prey to traffickers. The team should therefore carefully assess when and how to involve CPS in identification and provision of services to minor survivors of trafficking in persons. Regardless, it is important to train CPS workers about human trafficking and to involve CPS in coalition building. CPS workers who understand aspects of human trafficking will be able to identify potential trafficking cases that come across their desk and know where to report these potential cases. As for respective roles and responsibilities of members of the trafficking team, it is helpful to have the discussion with CPS in advance of any action, especially if CPS involvement might create a conflict like the one mentioned above. It might be possible to arrive at some acceptable protocol or procedure that insures the least harm is done by the team.

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§ 10.5 Unaccompanied Refugee Minors Program (URM) The Unaccompanied Refugee Minors Program (URM) is a program of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS). This program is tasked with the care and welfare of unaccompanied refugee and human trafficking minors discovered in the United States. “Unaccompanied” means that the minor does not have a parent in the United States that is able to take responsibility for the minor. It may be that the minors have been apprehended at the border by Customs and Border Protection (CBP), and determined to be an unaccompanied minor. The minor is placed in the custody of HHS.

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If a minor is discovered in the United States and determined to be an unaccompanied minor, that minor becomes the responsibility of the URM program. The minor will be interviewed and an assessment will be made. The minor will then be placed with a local URMapproved agency. For example, in the South Bay Region, the URM-approved agency is the Catholic Charities of Santa Clara County. That agency will assign a case manager to the minor, who will find a foster home for the minor, assist the minor in enrolling in school, and facilitate other services required by the minor. The URM case manager will also contact immigration legal service providers, as needed. It should be noted that if the minor was discovered by ICE or CBP, the minor may have been issued a Notice to Appear initiating removal proceedings. Frequently, the URM case manager will know if any immigration action has been initiated against or on behalf of the minor and have copies of the immigration paperwork created. This situation will be discussed at greater length below. In order for the minor to be placed in the URM program, an assessment must have already been made by someone screening the minor to determine whether she is a human trafficking survivor. Unaccompanied refugee minor cases involving human trafficking are often referred to legal services providers by URM case managers. An “Eligibility Letter” is generated by ORR that officially places the minor in the URM program. This letter may be useful to the minor’s immigration legal representative, since it represents one federal agency’s determination that the minor is a survivor of trafficking in persons. Thus, when the attorney receives the referral for the case manager, the minor has often already been determined to be a survivor of human trafficking by DHHS. It is possible for the attorney to seek designation as a survivor of human trafficking under URM for her client. There are forms that HHS requires3 before the request is taken under consideration. Moreover because the legal standard is higher for minor victims of labor trafficking than of sex trafficking, minors have been known to be denied Eligibility Letters by HHS because of their confusion over the legal definitions of trafficking, involuntary servitude, debt bondage, and peonage.

Visit www.acf.hhs.gov/sites/default/files/orr/request_for_assistance_for_child_victims_of_human_traffic king.pdf for a copy of the request, complete with instructions on how to fill out the form and where to send it.

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The URM program is a comprehensive services program that is well staffed with welltrained persons familiar with working with unaccompanied foreign-national minors. Through this program staff develop trust with the minor and know the family history, interests and challenges the minor faces. If you represent a minor from the URM program, it is useful to learn as much as possible from your client’s case manager at the outset of the case. Also, it is helpful to request all of their documents, including any immigration documents, the ORR Eligibility Letter, and the case assessment. These documents may give you crucial information allowing you to better represent your minor client. Furthermore, the case manager can keep you informed of your client’s school and activities schedule, and assist you in obtaining permission from the school if you need your client to be excused for court or appointments with your office.

§ 10.6 Guardianship/Conservatorship Some unaccompanied minor trafficking victims may be eligible for a guardianship or conservatorship order from the Probate Court. Guardianship or conservatorship orders give a trusted adult the legal authority to deal with the educational and medical needs of the minor. These guardianship orders are especially useful if there is a trusted extended family member like an aunt or adult cousin who is willing to take responsibility for the minor. Sometimes these placements are preferable to placements in foster care facilities. The danger, which must be assessed in advance of seeking these orders, is the role, if any, of extended family members in the trafficking of the minor. Where the extended family members have no connection to the trafficking and can adequately protect the minor, guardianship orders are mechanisms to protect family unity. Conservatorship orders ensure that the minor has an unbiased advocate. This may be particularly useful if the minor finds himself in the middle of legal proceedings or needs representation on issues of financial restitution. Agencies that represent children and youth in legal matters can assist your minor client in seeking guardianship and/or conservatorship orders. In the San Francisco area, Legal Services for Children (LSC) can assist with these orders, as well as representation in removal proceedings. In the South Bay region, Legal Advocates for Children and Youth (LACY) is able to assist with guardianship and conservatorship orders.

§ 10.7 Shelter/Foster Families

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Shelter needs for minor trafficking survivors vary depending on whether the minor is accompanied by a parent or not. In cases where the minor is accompanied by a parent, where the parent is the mother, and where the minor is female or a young male, the family may be sheltered in domestic violence shelters. The situation becomes more complicated for the family if the parent is male and/or the minor is an older male child. Then the shelter options are fewer and case managers will need to be creative about housing the family, including the minors, as discussed above.

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In the case of unaccompanied minor survivors, the principal options for shelter are foster care homes. These foster homes are preferable to immigration detention facilities for youth. If family or friends, who have no connection to the trafficking incidents, can be found, their homes offer an alternative to minor survivors.

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Foster families through the URM program have been carefully selected and trained for their role in caring for unaccompanied minors. These families receive on-going support from the URM approved agency, which makes these placements successful. One word of caution is necessary in cases where your minor client resides with a foster family. The family home address should not be recorded in any immigration applications. Instead, the address and phone number of the URM-approved agency is sufficient. This practice protects the privacy and safety of the foster family.

§ 10.8 Reunification with Immediate or Extended Family Members As noted above, reunification of minor human trafficking survivors with immediate or extended family members should be approached with caution. Until you have a clear understanding of who was involved in making the arrangements with the traffickers, what the motive of the family or friends were in making these arrangements, and what if any threat the family or friends pose to the safety and well-being of the minor, it is vital to proceed with caution. Case managers may already have conducted a safety assessment, but may not have sufficient details of the trafficking arrangements to complete the picture. Also be aware that minors may not know all of the details of their trafficking, and/or may feel some obligation to protect family and friends. Minors may feel obligated to their parents, other family members or trusted family friends. If the family incurred a debt with the traffickers or is relying desperately on anticipated wages of your client, she may continue to feel obligated to her family. She may ask you to help her find a job as soon as possible. Even without a sense of obligation, your client may still be under the influence of parents and so place herself in danger. Your client may not realize the danger of contacting traffickers at her parents’ insistence. Her parents may trust the traffickers and be oblivious to the threats posed by the traffickers, or they may feel threatened because of the looming debt. Your client may be receiving advice from her parents that is counterproductive to the work you are doing. Speaking frankly with your client about her situation here, as well as the process you are assisting her with, while withholding any judgment, may help you to address family influence.

§ 10.9 School/Activities/Mobility

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Minor survivors, especially those who are part of the URM program or social services programs, will be registered and attending school. Many of these programs also search for activities for their minors, including involvement in sports, art, and music. Some of the young survivors may be taking additional English as a Second Language (ESL) classes. These young

people have full schedules, making it more difficult for them to attend the many appointments required by the trafficking case. The survivor may have appointments with law enforcement, as well as your office. Where possible, scheduling appointments in the afternoons to avoid disruptions to school will benefit your client. Flexible scheduling around other activities is also beneficial to your client. If possible, take advantage of school breaks and vacation time. If you do need to schedule an appointment during school hours, make sure the school is aware of this need. You can provide a letter or note to your client to give to the school stating she had an unavoidable appointment with your office. When working with minor survivors, you will find that your clients are even less mobile than adult survivors. Minors may not have access to transportation, and in some cases will not be able to obtain a driver’s license. Minor survivors are usually very dependent on their case managers, foster family, family, or friends to give them rides to your office. Again, this means your office may need to be flexible in scheduling around their driver’s work schedule.

§ 10.10 Limited Knowledge of Trafficking Arrangements As mentioned above, minors are frequently uninformed about the arrangements that their parents or caretakers made with their traffickers. Your minor client may have been told only a limited amount of information initially, and over time may come to learn more details. Your client may also have very little information and may need to contact parents or guardians to learn more of the details, assuming this contact does not pose a safety risk to your client.

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Example: Beatrice had not seen her father for several years. One day he arrives at their family home to announce that she has been “sold” to a strange, older man as payment of her father’s debts. Beatrice is told to pack a set of clothes and to go with the man to work as his domestic servant. The older man brings Beatrice to the United States to cook, clean and do his laundry. Beatrice misses her mother, but is not allowed to contact her family because she now “belongs” to this older man. When a neighbor helps Beatrice escape and takes her to a shelter, the shelter calls you to screen Beatrice. At first she is very reluctant to talk because she is afraid of her father. She also does not want to get him in trouble. When she finally opens up to you, Beatrice admits she does not know many details about the arrangement between her father and the older man. She does not know how much debt her father owed to the man, or how long she was expected to stay with the man as payment for the debt. Example: Susan became involved in political activities in her home country through her school. At several protests she passed out fliers. She came to the attention of the government, and only barely escaped detention and torture twice. Susan’s parents are desperate. They want to help Susan leave the country before she is harmed by the government. Since they are poor, they do not have a way to get a visa for Susan to travel to Europe or the United States to study. Through friends they learn about some smugglers who tell Susan’s parents that they can help Susan get to the United States to work and study for a fee. All Susan knows is that the fee is close to $30,000. Because

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Susan’s parents cannot pay the entire fee, they pay part of it and promise Susan’s labor as payment for the rest. Susan does not know what work she will be told to do upon arrival in the United States or how long she will be required to work. She only knows that the traffickers will choose her work and will control her working conditions. Soon after arrival in the United States Susan is detained by immigration and placed in the URM program. She is identified as a human trafficking survivor and brought to your office. After several appointments with Susan, you determine that her parents only wanted to help Susan escape persecution, and had no idea that the people they trusted would deceive them and try to harm Susan. Based on this assessment you decide it is safe for Susan to contact her parents to try and learn more about the arrangements they made with her traffickers.

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§ 10.11 Trust and Vulnerability Many minor survivors of human trafficking have even less control over their situation than most of their adult counterparts. In many cases, minor survivors did not choose to leave their country and travel to the United States. As in the previous examples, minor survivors may have been informed by parents or other authority figures that their travel to the United States has been arranged and that they have no choice regarding the decision. Minor survivors are more susceptible to the false promises of family members and family friends offering them opportunities to fulfill their dreams of education and travel. Because trusted guardians are sometimes involved in entrapping them and harming them, minor survivors find it difficult to trust anyone again. Minor survivors are also more vulnerable to the threats of traffickers. Traffickers capitalize on minors’ youth and inexperience to instill fear and mistrust. Traffickers tell minors that if the police find them, the police will not believe their word over that of an adult. Sometimes traffickers threaten that the minor will be held in jail until a parent can come to the United States to release them—a virtual impossibility for parents who are poor and unable to obtain visas to the United States. Minor survivors have even less understanding of and trust in their rights and are more susceptible to manipulation by adult traffickers. Minor survivors may have been taught respect for elders and obedience to the wishes of older persons. Your client’s vulnerability and distrust may make it difficult for you to communicate easily with him. She may not tell you crucial information because you are one more adult who she does not know and who she has reason to be suspicious of. She may think you are trying to deceive her as well.

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In working with minor survivors, it is important to take the process slowly and frequently repeat and explain the process. Provide information about each step and explain why you are asking the questions you ask. Under no circumstances should you make promises you cannot keep. With all human trafficking survivors, but especially with minor survivors, you will want to build trust. Your client must learn to trust what you tell her, trust that you are listening to her wishes, and trust that you are her advocate.

PART TWO: ISSUES SPECIFIC TO LEGAL IMMIGRATION REPRESENTATION OF MINORS § 10.12 Removal Proceedings Identifying survivors of trafficking in persons is difficult because the survivors are often well hidden in the fabric of society. Many survivors work and live under the control of their traffickers, completely isolated from the general public. Those that work in service industries or with the public have been repeatedly threatened and are terrified to speak to anyone about their situations. Thus, the discovery of human trafficking survivors is challenging. Minor survivors can potentially be more vulnerable and less visible. However, minors traveling alone or in groups in the United States are more likely to be noticed by immigration enforcement, and questioned. In the latter situation, if the minor is not authorized to be in the United States, immigration authorities will place the minor in removal proceedings and place the minor in the care of the URM program. Because minor survivors are more hidden, it is likely that the majority of minors who come to the attention of the trafficking team will come through programs such as the URM or county social services programs. Many minors who are in the URM program are increasingly identified as human trafficking survivors. Because minors are less likely to escape their traffickers, identification by an agency such as immigration is the most likely way a minor survivor will become your client. For those minors in removal proceedings, several immigration court practices and guidance resources are helpful. As with survivors of domestic violence, it is possible to advise the immigration court that your client is a minor and a human trafficking survivor and request that her name not appear in the court’s public information (1-800 recording of case information and hearing schedules posted at the court). This request will help ensure the safety of your client if her traffickers are looking for her and know that she has been detained by immigration authorities. Another practical pointer is to request the court to follow procedures for hearings involving minors. These procedures provide guidance to the court about ways to make proceedings more child-friendly. If possible, have your client’s case manager attend the hearings with you. The more support and friendly faces your client has accompanying her, the easier the process will be for her. Also if possible, have your client visit the court in advance of her hearing, so she is familiar with the courtroom.

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§ 10.13 T Visas, U Visas or Special Immigrant Juvenile Status For minor survivors of human trafficking, there are additional options for immigration relief. These are discussed more extensively below. Briefly, in addition to the T Visa or U Visa, a minor survivor may be eligible for permanent residence through Special Immigration Juvenile Status (SIJS). This status requires an order from a juvenile court finding that the minor cannot be

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reunified with one or both parents because of abuse, neglect, abandonment or a similar basis in state law. This may include children in dependency proceedings, delinquency proceedings, and guardianship through a probate court. As with any immigration status, there may be reasons for and against pursuing this form of immigration relief. When assessing the appropriate forms of relief to pursue, include all eligible options.

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For minor survivors in removal proceedings who are expressing a fear of returning to their home country, there may also be the option of political asylum. Under new provisions, the initial application for political asylum for a minor will be reviewed by the Asylum Office even if your client is in removal proceedings. The one-year filing deadline is also waived for unaccompanied minors, so rushing to file an asylum claim for many minor trafficking survivors is no longer necessary.4

§ 10.14 Cooperation Requirements Vary Based on Age Both T and U visa provisions relax cooperation with law enforcement requirements for minors. For individuals under 18 seeking T visas and individuals under 16 seeing U visas cooperation may consist solely of reporting the incident to law enforcement and they are not required to cooperate. Individuals over 18 years of age may also file T visas without reporting the case to law enforcement if the trafficking occurred when the applicant was a minor.5 The reasons are logical. Minor survivors frequently find it difficult to share their experiences because of trauma and lost trust. When asked to recount traumatic experiences to law enforcement, the stress and discomfort increases. Further, for many minors deference to adults will lead the minors to withhold embarrassing information, or answer in a manner they believe will make the adults pleased. As discussed above, minor survivors may not have all of the relevant information sought by law enforcement. For all of these reasons, immigration provisions relax the requirements to cooperate with law enforcement. As the advocate of a minor survivor, you should assess carefully and discuss with your client the amount of cooperation that feels safe and reasonable. Law enforcement may pressure your client to cooperate, especially if your client is the principal witness to the trafficking incident. Your client may also want to assist law enforcement. Your role as advocate will be to provide a buffer between law enforcement and your client, including insisting that cooperation is not required, if that is in the best interest of your client.

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INA § 208(a)(2)(E) “Subparagraphs (A) and (B) [Safe Third Country and Time Limit exceptions respectively] shall not apply to an unaccompanied alien child (as defined in § 462(g) of the Homeland Security act of 2002 (6 USC 279(g)).” 5 This requirement elaborated under 8 USC § 1101(a)(15)(T)(III)(cc) was clarified as recently as April 2013 by CIS at the Freedom Network conference and based on the authors’ experience in successful T visas filed and granted for applicants who submitted T visa applications when they were over the age of 18 but did not report their case to law enforcement because they were trafficked as minors.

§ 10.15 Force, Fraud or Coercion Not Required for Commercial Sex Work if under 18 Years Old For trafficking incidents involving commercial sex work where the survivor is under 18 years old, both criminal and immigration statutes remove the requirement to prove “force, fraud or coercion.” In other words, if your client is under 18 years old and was induced to perform commercial sex work, you do not have to establish “force, fraud or coercion,” but only the facts of the commercial sex work. This elimination of the requirement to prove “force, fraud or coercion” does not apply to incidents of labor trafficking involving minors. Not all incidences of child labor and exploitation constitute trafficking. Establishing “force, fraud or coercion” can be challenging in labor trafficking cases. Many times the trafficking arrangements were made by family members or other trusted adults. In those cases, your minor client may not have had any expectations, so establishing fraud is more difficult. Force and coercion are more straight forward to prove, but in cases of fraud it will be important to spend time with your client to find out what if anything she or he thought would happen when upon arrival in the United States, what if anything they were told at the time arrangements were made, and what if anything the traffickers mentioned or promised en route to the United States.

§ 10.16 Family Derivative Petitions For T and U visa petitions where the principal is a minor (in this case under 21 years old), it is possible to seek derivative petitions for a spouse, parents, and siblings. The siblings of minor survivors must be under 18 years of age and not married to qualify for a derivative petition. When working with your minor client, you should discuss with her the possibility of seeking derivative petitions for her spouse, parents, and siblings. These petitions may be crucial for family members, especially if the traffickers are threatening the family because your client has escaped.

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Example: Jane was trafficked into the United States for forced labor. She was told she would have to work to pay off a large debt to her traffickers, but was not told what work she would be forced to do, or under what conditions and for how long she would be forced to work. En route to her final destination, Jane was found by immigration authorities and placed in the URM program. Her traffickers began to threaten Jane’s parents, including threatening to kidnap Jane’s younger brother and force him to work to pay off the debt. Jane’s parents did not want to leave their country, but they desperately wanted to protect Jane’s younger brother. In discussions with Jane, Jane’s immigration legal advocate decided to apply for a derivative visa for Jane’s younger brother. Only a spouse, minor siblings, and parents qualify for derivative petitions. This means that it will not be possible to protect all family members, including older siblings and extended family members with derivative petitions. A possible revision of this standard to include children of minor siblings as derivatives is currently being considered. At the present, if a minor sibling is

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eligible for a derivative petition, other immigration relief such as humanitarian parole may be the only avenue to include the children of siblings.

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When assessing whether to file derivative petitions for family members, you will want to consider whether the family members played a role in the trafficking of your client. This assessment is vital, because as we articulated in § 7.12 on Conflicts of Interest, your client’s safety and vulnerability to being re-trafficked could be jeopardized by bringing those same family members to the United States on derivative visas. Other considerations include ensuring that the principal minor applicant has enough resources and ability to support siblings on their own if they do not have the support of other adults.

§ 10.17 Trauma and Testimony Trauma affects both memory and one’s ability or desire to recount painful events. Trauma manifests in several principal and alternating phases—in an intrusive phase and a numbing or constricting phase. In the intrusive phase, your client will re-live the traumatic event, will experience nightmares, and will startle easily. In the numbing phase, your client will withdraw and recount events as if she were a witness or third party, not the individual who experienced the trauma. Regardless of the phase that your client is experiencing, she will find it difficult to speak of the events. During the intrusive phase, your client may shy away from any discussion that triggers vivid memories of the painful events. That may mean missed appointments, refusal to answer questions directly, and tearful or emotional reactions to being asked to talk about the incidents. During the numbing phase, your client may speak with little or no emotion about horrific experiences. While not as difficult for the interviewer, this phase can give the impression that your client is fabricating information because she is calmly relating such difficult information. Regardless of the phase and how it manifests itself, the process of interviewing is painful for your client. And in the context of a trafficking case, she may have to repeat the process often—with law enforcement, with you, with a therapist or counsel, and in court if the criminal proceedings go to trial.

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For survivors with post-traumatic stress disorder (PTSD), memory is also affected. Your client may have complete or partial memory loss because of horrific experiences. Memories may resurface and then disappear again as your client’s mind tries to protect itself. Your client will also most likely be unable to relate events in a chronological fashion, but instead explain events in a circular manner, jumping back and forth in time. For your interview, you will need to be patient with your client and work with her over time. You may also need to educate and inform your team partners; especially law enforcement and the criminal prosecuting team. It is important that they do not question your client’s veracity because this will likely make your client withdraw and shut down. Investigating officials will not have the luxury of interviewing your client slowly and over time, so if you can spend time with your client first to help her process the information before reporting the incident, it will make the law enforcement interview less stressful and traumatic. Where survivors are identified through law enforcement actions, the presence of immigration legal advocates experienced in working with survivors of trauma is beneficial.

These legal advocates can assist law enforcement in identifying the breakdown in communication due to trauma; thus, avoiding missed identification of survivors. All of the information discussed above applies to minors. For minor survivors, the process may be longer and the symptoms less obvious depending on the age of the survivor. For example, young children may not be able to communicate fears and flashbacks, but may exhibit their trauma through play, reenacting the traumatic events with toys. They may also actively seek to suppress any memories related to the trauma. Given the additional trauma that minors may face, make sure to assess the legal situation and decide if additional legal processes (e.g., a criminal investigation, civil litigation, restraining order) are necessary and appropriate for the client. Assess whether or not your minor client could benefit from filing a T visa without having to report the case to law enforcement (triggering additional traumatizing interviews) for the time being. In these cases, it will be helpful to your client and your team if you can include therapists trained in trauma as members of the team. These therapists can provide mental health services to your client and support your client through the legal processes, hopefully minimizing retraumatization of your client. They can also assist with documenting the trauma and effects of the trauma on testimony through psychological evaluations.

PART THREE: SURVIVORS IN CRIMINAL, DETENTION, AND REMOVAL PROCEEDINGS

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Survivors in Criminal Proceedings Your first contact with a trafficked person may be after the individual has already been discovered and is placed in criminal or immigration detention. This could be a result of the fact that the trafficked person has not yet been properly identified as a victim of human trafficking. It is not unusual for a trafficker to force his or her victim to commit criminal acts as part of the overall trafficking situation. Criminal liability, not to mention guilt and lack of knowledge about one’s rights, is a useful and effective tool to control another person’s behavior. Therefore, one of the issues that you will need to confront early on is assessing the survivor’s involvement, whether voluntary or involuntary, in any form of criminal activity. You must evaluate your client’s possible exposure to criminal liability and possible ineligibility for immigration relief that might result. You do not want your client to be ineligible for relief due to criminal actions that might have been a part of the trafficking scenario and you should obtain as much information about any criminal activity involving your client as soon as possible. You will want to ask about any arrests or convictions that your client is aware of, whether or not it is in any way related to the trafficking situation. You should also obtain copies of any and all police reports and other documents that might be a part of the criminal record since many trafficked persons will not know, understand, or accurately remember what happened. If you or your agency does not have expertise in criminal defense, you should contact a criminal defense attorney who can examine the information provided and evaluate your client’s potential criminal liability, and best defenses, if any.

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If your client is a minor or has an arrest or criminal record based on activity when she was a minor, you may have to go through extra procedures to access records and determine the extent that the individual’s juvenile criminal history will affect their immigration case, and how much information and to whom it should be disclosed to. However, be careful about what records are disclosed to CIS, as many states maintain confidentiality provisions that prohibit the open disclosure of information of youth in the child welfare system and juvenile justice system.6

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Your job will be much easier if you are able to connect the criminal act(s) of your client to the trafficking situation. If you can, and your client is in criminal detention, you should determine the possibility of having your client released via posting bond or on her own recognizance as a non-flight and non-safety risk. Criminal charges can be, and should be, dismissed by the prosecutor if there is a connection to trafficking. If your client is cooperating with a federal or local criminal investigation, you should ask the prosecutor and law enforcement investigator(s) (i.e., FBI, local police) to assist you in securing the release of your client from detention. If there is no connection between the criminal history and the trafficking, it may not be possible to successfully obtain the release of your client from criminal detention. It is an extremely individualized assessment in these types of situations regarding possible criminal charges, potential sentences, and possible plea bargains. You should obtain the assistance of counsel who has expertise in criminal defense to strategize regarding your client’s best options for relief. In this situation, the immigration relief may not be your first priority and may have to take a backseat to the criminal issues until those are resolved. One practical note that we recommend is that you should have your client carry, at all times, a letter from the prosecutor or the law enforcement agency investigator describing that the client is a cooperating victim/witness and is represented by counsel. This letter should also include the contact information for you, the prosecutor, and the investigators. This has prevented a great deal of frustration, trauma, and miscommunication in several of our cases and can help your client navigate situations involving law enforcement encounters while the case is on-going. If your client is picked up on an ancillary criminal charge after her trafficking situation has been terminated, the very first thing you should do is have her meet with a criminal defense attorney. Unless you have a solid working relationship with the charging prosecutor and have some degree of confidence that the prosecutor can and will take into account that your client is a trafficking victim, and thereby dismiss or alter the criminal charge appropriately, you may want to directly connect with the prosecutor in charge of human trafficking cases instead. For example, if your client is arrested for prostitution after she escapes her sex trafficking situation, then you will probably want to bring this to the attention of the prosecutor who is in charge of the sex trafficking investigation to determine if there is anything that can be done to minimize the criminal liability of your client for the post-trafficking prostitution.

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For more information, see the American Bar Association’s website “Think Before You Plead: Juvenile Collateral Consequences in the United States” at www.beforeyouplea.com.

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Survivors in Immigration Detention and Removal Proceedings If your client is in immigration detention and is cooperating with a federal or local criminal investigation or case, Immigration and Customs Enforcement (ICE) has the authority to terminate the Notice to Appear (NTA), which is the immigration analogue to a charging document in a criminal proceeding. You will need to advocate for her release from immigration custody and perhaps agree to terms of release, such as electronic surveillance, in order to successfully obtain this relief. If there is an on-going criminal investigation or prosecution related to the trafficking situation that impacted your client, again, the prosecutor and law enforcement investigators should be alerted to any negative encounters with immigration authorities by your client and their influence brought to bear for the benefit and relief of your client. Trafficking survivors that are detained face several disadvantages. First, they are far less likely to be identified as trafficking survivors. Second, even if identified, if they remain in detention, working with them to prepare extensive documents is far harder due to issues related to access, travel (if the detention center is located far from your office), and lack of access to many medical and social services that undetained trafficking survivors are more likely to receive through case managers. As survivors of trauma, trafficking survivors who are unable to receive proper medical and psychological services may have their trauma further exacerbated when interviewed about traumatic events, further destabilizing them. When preparing a U and/or T visa, you may choose to meet with the client at the detention facility or arrange for transportation to a particular center. To locate where a detainee may be, you can go to https://locator.ice.gov/odls/homePage.do to search for the individual. You may be able to fax a request for transportation to the facility to the client’s detention and removal officer (DRO). Keep in mind that you may not be interviewing your client in secure surroundings; thus the information may not be totally confidential. You should understand the hours of operations at each facility for meeting with clients, and if there are gender divisions in interviewing and visiting rooms. You may want to choose to meet with clients early in the morning if those hours mean there are fewer visitors to interrupt and overhear sensitive information you share with the client. Because clients in detention are less likely to be able to secure their belongings, you may want to coordinate with your client if they should hold onto copies of detailed declarations and documents that they may not want other detainees or others to be able to access and read.

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Keep in mind that your clients in immigration detention centers are likely to have less access to medical and psychotherapy services, and in the course of interviewing them to prepare U and T visa applications, their trauma may be retriggered with fewer resources to turn to for therapy. Because your client may be facing imminent removal, it is important to file documents immediately to stay their removal. You may apply for the stay of removal. You may also choose to file a skeleton T or U visa with the basic documents (forms, certifications, etc.) to stay the removal to buy you some time to prepare a declaration and other supporting documents to

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supplement the T or U visa. This will help you demonstrate to the immigration judge when you file motions to continue or motions to administratively close the case that a T or U visa is pending.

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If your client is in detention or removal proceedings, you should request expedited processing of the U or T visa application from the Vermont Service Center (VSC) at CIS. To request expedited processing, the U or T visa application must already be submitted to the VSC with a G-28. Upon confirming that the applicant is detained, VSC should notify ICE and issue a bona fide determination, which is not an indication of whether or not the petition has been granted, but merely that the person has submitted a complete application and may be eligible for U or T nonimmigrant status, and supporting that a stay of removal should be granted by ICE. There are both challenges and routine matters that arise when representing clients in removal proceedings depending on: 1) what has happened to date in the case and 2) what immigration relief is available and most beneficial for the survivor. Cases are less challenging and more straightforward if the client is in the initial stages of removal proceedings, such as master calendar hearings. Any removal proceeding that may be pending should be, and can be, administratively closed until a trafficking victim has the opportunity to apply for T or U visa relief. It is easier to request the court to reschedule the hearing or administratively close the proceedings while a T or a U visa petition is pending. Administrative closure requires less monitoring on everyone’s part, because the case is taken off calendar and will require a motion to put it back on calendar once the T or U visa is adjudicated. Policies in the Office of Chief Counsel (OCC) might favor motions to continue, but unless the court reschedules the hearing for at least a year, it may require subsequent motions to continue if adjudication takes eight to twelve months. Make sure to calendar the hearings and plan to file motions to continue at least 30 days in advance of the scheduled hearings, while the T or U visa petition is pending. Often Assistant Chief Counsels will “nonopp” (not oppose) the motion to continue, but some will insist you file without a stated position from the Government. See redacted samples in Appendix Z: Sample Motion for Administrative Closure of Removal Proceedings. Cases in removal proceedings are much more complex if the client has a matter on appeal or has received an order of removal (expedited at the border or from an immigration judge). Where clients have overstayed voluntary departure, have outstanding orders of removal or have prior orders of removal and thus are subject to reinstatement of removal, you may be required to prepare an emergency stay of removal, negotiate with ICE about reinstatement orders, and— where there are criminal issues tied to removal—address detention versus ankle monitoring bracelets.

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Once a, hopefully positive, result is reached in the T or U visa application process, you can and should file a motion to re-calendar and terminate removal proceedings based on the successful T or U visa application. Pursuant to 8 CFR § 214.11(d)(9), a final order of removal is canceled as of the date of an issuance of T visa relief and this fact can and should be utilized in any motion to administratively close removal proceedings pending the outcome of an application

for T visa relief.7 Also note that once a T visa or U visa has been granted, CIS has formally “admitted” your client to the United States, and therefore the standard basis for the Notice to Appear (the charging document) that your client is “present without having been admitted or paroled” is no longer valid. For ongoing removal proceedings you will need to file or work with the ACC to file a motion to terminate proceedings. When dealing with prior orders of removal and criminal issues, you will want to ensure the type of relief sought will allow a waiver of any grounds of inadmissibility. On the off chance that your client is related to their trafficker and the family members are in removal proceedings, you may want to inform the OCC and file a motion to sever your client’s (and derivative) case. If the matter is on appeal, you will want to get as much information on what has been filed as possible. Prior statements made could help or harm your client’s credibility. If the case is pending on appeal, you may want to consider filing a Motion to Remand based on eligibility for a T or U visa. You will need to establish why that relief was not previously available. Motions to Reopen are generally limited in number and time unless the OCC joins in the motion. Having the US Attorney’s office or Homeland Security Investigations (HIS)/ICE advocate with the OCC may help convince the OCC to join in such a motion.

PART FOUR: LEGAL RELIEF FOR WITNESSES

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If your client has not been definitively established as a victim of human trafficking by law enforcement but is still a person of interest as a possible material witness, perpetrator, or coconspirator in a trafficking scheme, you will have a host of additional issues to consider. First and foremost will be your decision to continue to represent this individual if you or your agency does not believe that she meets the definition of a trafficking victim. Since many victims cannot, will not, or simply do not have the information that would compel a solid finding that the individual is in fact a victim of human trafficking, it is possible that this ambivalent situation will change in the future with the discovery of additional information. However, if the situation does not change and you determine that the individual is not a bona fide trafficked person, but is someone who has critical information or “material” information regarding the trafficking scheme and is asking for your help, you can either a) continue to represent the individual if you feel that this is the appropriate course of action for you and your agency to take or b) advise the individual that you cannot represent him or her and provide proper referrals to alternative counsel. If you do decide to represent someone who is a material witness in a trafficking case, you must be aware that she may be arrested as a material witness or “matwit;” that serious criminal charges can be imposed if she refuses to cooperate with law enforcement; that continued detention is likely to occur, especially if she is a non-citizen; that work authorization is still a possibility and might be necessary if she is compelled to remain for more than a short time in the United States pending

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See Appendix Z: Sample Motion for Administrative Closure of Removal Proceedings.

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the outcome of the criminal proceeding; and last but not least, that representation of this individual may result in a conflict of interest with bona fide victims that you may also be asked to assist that are discovered through the case.

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Example: Susun sat sullenly in her chair in the interrogation room at the federal courthouse. She angrily told her attorney that she would not help law enforcement and would not answer any more questions. I want to return home immediately. I have work there, business interests there, and I don’t understand why I can’t leave the U.S.! I don’t know why you keep asking me if there was anything preventing me from leaving my job because everyone knows that all the girls working there wanted to be there! They’re all lying if they say anything otherwise and I can prove it. At that point, her attorney advised her that a federal public defender would be appointed to represent her; she could no longer be Susun’s attorney but everything that Susun had told her thus far would be kept confidential regardless. Note that in some cases, even when an individual does not meet the definition of a victim of human trafficking, he or she may have sufficient information to be of assistance to law enforcement. U.S. Attorneys have the ability to seek an “S visa” for persons with information about criminal or terrorist organizations. It is not possible for you or your client to apply for an S visa, but either you or—if you choose not to represent the witness—your client can approach the U.S. Attorney prosecuting the case to see if she or he would be open to seeking an S visa for the witness.8 Frequently, trafficking survivors are able to terminate their trafficking situation because they encounter others who work in similar places or move in the same social circles. It is not surprising that these “Good Samaritans” that assist trafficking survivors may also be undocumented and fearful of immigration consequences. In several cases, the undocumented “Good Samaritans” themselves may be threatened to or subjected to a crime by the traffickers in the course of assisting the trafficking survivors. Although these “Good Samaritans” are recognized by law enforcement as primary witnesses to the trafficking crime, their separate fears

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INA § 101(a)(15)(S) – “an alien (i) who the Attorney General determines - (I) is in possession of critical reliable information concerning a criminal organization or enterprise; (II) is willing to supply or has supplied such information to federal or state law enforcement authorities or a federal or state court; and (III) whose presence in the United States the Attorney General determines is essential to the success of an authorized criminal investigation or the successful prosecution of an individual involved in the criminal organization or enterprise; or (ii) who the Secretary of State and the Attorney General jointly determine – (I) is in possession of critical reliable information concerning a terrorist organization, enterprise, or operation; (II) is willing to supply or has supplied such information to federal law enforcement authorities or a federal court; (III) will be or has been placed in danger as a result of providing such information; and (IV) is eligible to receive a reward under § 36(a) of the State Department Basic Authorities Act of 1956, and, if the Attorney General (or with respect to clause (ii), the Secretary of State and the Attorney General jointly) considers it to be appropriate, the spouse, married and unmarried sons and daughters, and parents of an alien described in clause (i) or (ii) if accompanying, or following to join, the alien.” See U.S. Attorneys Manual, Title 9, Criminal Resource Manual 1863 for information on applications for “S” Visas at www.just ice.gov/usao/eousa/foia_reading_room/usam/title9/crm01863.htm.

and concerns should be addressed. Like a trafficking survivor, “Good Samaritans” who also have immigration concerns are likely to be more stable witnesses in criminal cases and more willing to testify if they are given protection. Example: At first, Leticia did not like the new hire named Maria at the restaurant because she always seemed so distracted and anxious leading to more work for Leticia cleaning up after her. After a month, Maria found out that Leticia came from a village close to her home country in Guatemala, and started to open up to Leticia more. Maria disclosed that “Maria” was not her real name, but that her uncle who came to pick her up from the restaurant everyday told her to use it. Maria also had strange habits. One time Leticia found Maria putting a customer’s leftovers into a box. Maria admitted shamefacedly that she was taking it home for dinner. Maria would also ask Leticia for maxi pads and to borrow basic necessities. Leticia thought it was strange—what happened to the salary and tips that Maria was making at the restaurant? Why couldn’t she use that money to buy these basic things? Maria finally told Leticia that her uncle took all the money and begged Leticia to help her escape her uncle. Leticia felt badly for Maria and had grown fond of her. When Leticia reluctantly agreed to let Maria come spend the night with her after work, the next day, Maria’s uncle stormed into the restaurant and began threatening Leticia and Maria. He turned to Leticia and specifically told her he knew she was also without papers, and that he would call immigration on her. For the next five weeks before Leticia was able to connect Maria to a non-profit that would eventually help Maria contact the police, Leticia was stalked at her home and three jobs by Maria’s uncle and his relatives, threatened during multiple phone calls and at the local church, and told that her parents in Guatemala would pay for her interference. Eventually, Leticia would serve as a main witness for the criminal case against Maria’s uncle and relatives. She also submitted a separate victim impact statement and was issued a U-visa Form I-918 Supplement B by law enforcement for the witness tampering, obstruction of justice, and related crimes of stalking that she also suffered as a result of Maria’s traffickers.

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As mentioned in this manual, because conflicts of interest may arise between “Good Samaritans” and trafficking survivors, separate counsel should be found if possible to represent the “Good Samaritan” as a witness or potential victim-witness, who will effectively advocate for their client’s rights and potentially a U-visa or some other form of immigration relief. Note that although S-visas are available for informants under 8 USC § 1184(k)(1), there is a cap of 50 per year, and they are less desirable than U-visas. Although U-visas also require law enforcement cooperation, S-visas are controlled and issued by law enforcement, and their ability to adjust for legal permanent residency is also controlled entirely by law enforcement. However, in cases where the “Good Samaritan” cannot also be recognized as a victim of a qualifying enumerated Uvisa crime, then the advocate of the “Good Samaritan” should advocate with law enforcement for an S-visa.

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CHAPTER 11 REPATRIATION AND OPTIONS FOR IMMIGRATION RELIEF

This chapter includes: § 11.1 § 11.2 § 11.3 § 11.4 § 11.5 § 11.6 § 11.7 § 11.8 § 11.9 § 11.10 § 11.11 § 11.12 § 11.13 § 11.14 § 11.15 § 11.16 § 11.17 § 11.18

Elements for Eligibility .................................................................................... 11-2 Standards of Proof ............................................................................................ 11-3 Denials and Revocations of Visa Applications ................................................ 11-4 Cases in Removal Proceedings......................................................................... 11-6 Cases with Orders of Removal ......................................................................... 11-7 Reunification/Repatriation to Home Country .................................................. 11-8 Safety Concerns in the Home Country ............................................................. 11-9 Services Available in the Home Country ......................................................... 11-9 Possibility of Return to the United States ...................................................... 11-10 Providing Resources to Client and Connecting with NGOs in Home Country ............................................................................................ 11-10 Remaining in the United States, but Not Pursuing Immigration Relief ......................................................................................... 11-11 Choosing Whether to Seek Immigration Status ............................................. 11-13 Choosing Which Status to Pursue .................................................................. 11-14 Preparation to File .......................................................................................... 11-21 While an Application Is Pending.................................................................... 11-22 Post Receipt of Relief ..................................................................................... 11-23 Consular Processing for Derivatives .............................................................. 11-23 Adjustment of Status ...................................................................................... 11-25

PART ONE: IMMIGRATION RELIEF Initially, as you screen your client you will want to consider all options for immigration relief. In assessing your client, you may need to first make determinations of your client’s present immigration status, which may be unknown. Filing a Freedom of Information Act (FOIA) request on your client’s file with CIS, ICE, Customs and Border Patrol (CBP), and/or Department of State, may be a first good step to start with, as it also takes time for the response and documents to be generated and sent to you. While the T visa is specifically designed for survivors of severe forms of trafficking in persons, the T visa may not be the only option or the most appropriate form of immigration relief for your client. In assessing which form(s) of immigration relief is/are most appropriate, you will want to consider the client’s current immigration status, elements of the relief, the requirements to prove the elements, the adjudication time, any caps on availability of the relief, status for family members, wait if any to apply for permanent residency, unique provisions in the various forms of 11-1

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relief, criminal history and grounds of inadmissibility, as well as the needs and preferences of your client.

§ 11.1 Elements for Eligibility As discussed earlier, the T visa is a nonimmigrant visa available for four years with the possibility of adjustment of status at the end of the third year. To be eligible for a T visa your client must establish that: 1) she is the victim of a severe form of human trafficking [commercial sex or forced labor]; 2) she is present in the United States or at a point of entry on account of trafficking in persons; 3) she has complied with any reasonable request for assistance from law enforcement; and 4) she will suffer extreme hardship involving unusual and severe harm if removed from the United States. The U visa is also a nonimmigrant visa available for four years with the possibility of adjustment of status at the end of the third year. To be eligible for a U visa your client must show that: 1) she is the victim of one of the statutorily listed crimes and that the crime occurred in the United States or violated U.S. law; 2) she possesses knowledge of the crime; 3) she has been, is being or is willing to be helpful to law enforcement in the criminal investigation or prosecution of the crime; and 4) she has suffered substantial mental or physical abuse as a result of the crime. Specifically, some of the statutorily listed crimes include crimes that trafficking survivors frequently are victims of, including but not limited to trafficking, peonage, involuntary servitude, slavery, rape, false imprisonment, fraud in foreign labor contracting, stalking.1 Violence Against Women Act (VAWA) self-petitions can take the place of certain relative petitions and will qualify the self-petitioner as either an immediate relative or in one of the preference categories. The relationship and thus the category dictate the length of time between approval of the petition and eligibility to adjust to permanent resident. For this form of relief, your client will need to establish that: 1) she is the spouse or child of a U.S. citizen or lawful permanent resident or the parent of a U.S. citizen; 2) if a spouse, that she resided with her spouse and had a good faith marriage; 3) she suffered battery or extreme cruelty; and 4) she is a person of good moral character. Special Immigrant Juvenile Status is available to a minor if she can prove that: 1) she is unmarried and under 21 years old, 2) has a special juvenile court order finding that she cannot be reunified with one or both of her parents because of abuse, neglect, abandonment or a similar basis in state law, and 3) that it is not in the her best interest to return to her country of origin.

1

Under 8 USC § 1101(a)(15)(U)(iii), “the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: 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 the above mentioned crimes.”

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Political asylum provides safe haven to your client if: 1) she is outside of her country of nationality or last habitual residence; 2) she is unwilling or unable to return to and unable or unwilling to avail herself of the protection of that country; 3) because of persecution or a wellfounded fear of persecution; 4) on account of race, religion, nationality, political opinion or membership in a particular social group. These forms of immigration relief are only some of the more common options for survivors of human trafficking, but certainly they are not the only options. There may be other types of immigration relief that are closer to what your client seeks or are more appropriate to your client’s circumstances. As her immigration advocate, remember to assess ALL options. See Appendix EE: Resources for Various Forms of Immigration Legal Relief.

§ 11.2 Standards of Proof The proof needed to establish eligibility for a T visa will generally include a declaration of the survivor addressing the elements of the visa. Proof of cooperation with law enforcement can be a Law Enforcement Affidavit (LEA) [Form I-914 Supplement B], which is primary evidence; or secondary evidence such as correspondence with law enforcement reporting the trafficking incident and stating availability to assist in any investigation or prosecution, incident reports and cards, subpoenas, and evidence of Continued Presence. [Note: Trafficking victims under the age of 18 and/or who were trafficked while a minor applying for T-visas do not have to cooperate with reasonable requests for assistance from law enforcement. Victims who were under age 18 when they became trafficking victims file for adjustment of status from their T visa also do not have to provide proof of cooperation with law enforcement.] Finally, an applicant for a T visa will need to establish extreme hardship if removed from the United States.2 Proof of this hardship can include State Department Human Rights reports and Trafficking in Persons (TIP) reports to show lack of protection from revenge of traffickers or re-trafficking; documentation of physical or mental harm suffered from trafficking for which the applicant is being treated in the United States; proof of age; proof of importance of access to justice in the United States; among other types of proof. See Appendices P and Q: Sample T Visa Application Cover Letter A and B; Appendices R and S: Sample T Visa Declaration A and B; Appendix T: Sample Form I-914. In order to establish eligibility for a U visa, the general supporting documentation includes a declaration from your client addressing the elements of a U visa. Unlike T visas, the U visas require submission of a Law Enforcement Certification [Form I-918 Supplement B]. Also, an applicant must submit proof of substantial physical or mental abuse. This evidence can include medical records, letters from counselors, photos, psychological evaluations, police reports, among other documents.

2

For specific information and instructions on how to prepare T visas, see http://aaldef.org/docs/T-visamanual-3rd-ed%281208%29.pdf and www.uscrirefugees.org/2010Website/5_Resources/5_4_For_Lawyers/5_4_3_Human_Trafficking_Resourc es/5_4_3_1_Human_Trafficking_Manuals/AGuidefor_LegalAdvocates.pdf.

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For VAWA self-petitions, the principal evidence is your client’s declaration. Other evidence includes proof of relationship to the abuser (birth certificate or marriage certificate), proof of legal status of abuser (copy of green card, U.S. passport, or U.S. birth certificate), proof of residence with the abuser (rent receipts, bills, mail, taxes), proof of battery or extreme cruelty (police reports, restraining orders, hospital reports, counselor reports, eye witness accounts in the form of letters or affidavits, and photos), and proof of good moral character (character references, police clearance letters, awards, school transcripts and more). In SIJS cases, the proof primarily is a special order from a juvenile court declaring the child to be a court dependent, legally committed to a state department or agency or the care of an individual or entity appointed by a state or juvenile court in the United States, including children in dependency proceedings, delinquency proceedings, and guardianship through a probate court. The order must also find that the child cannot be reunified with one or both parents because of abuse, neglect, abandonment or a similar basis in state law; a brief reference to facts supporting the finding of abuse, neglect, abandonment or a similar basis in state law; and that it is not in the child’s best interest to return to her or his country of origin. The other piece of evidence would be your client’s birth certificate. Finally, with Political Asylum, proof can include a detailed declaration addressing the elements of asylum, State Department Human Rights reports and Trafficking in Persons reports, other credible country condition reports, declarations or statements of witnesses, newspaper articles, photos, and more. The availability of this proof, as well as the strength of the proof, may impact your decision which of the options to pursue. These pros and cons will be discussed in more in depth below.

§ 11.3 Denials and Revocations of Visa Applications Most applications for immigration relief will rarely trigger an outright denial. Before it denies an application, U.S. Citizenship & Immigration Services (CIS) will usually send you a Request for Further Evidence (RFE), except for political asylum cases. With affirmative political asylum cases, you will either receive an approval or a referral to Immigration Court. In cases where your client has a valid visa, you might get a Notice of Intent to Deny (NOID) or Denial. Before the Immigration Court, the immigration judge or trial attorney may ask for additional proof or information, but usually it is a verbal request that includes time to prepare and submit the evidence. The RFEs generated by the Vermont Service Center (VSC) tend to be very detailed. VSC handles VAWA, T visa and U visa application adjudication. The RFEs in these cases generally explain in detail the officer’s concerns about eligibility and/or sufficiency of the evidence. In responding to these RFEs, it is helpful to use the RFE as an outline, and thoroughly respond to each point or question. Occasionally, when new adjudication officers are rotated into the VAWA/T/U Unit, you will see a spike in the number of RFEs issued. Sometimes the RFEs

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request information or documentation already submitted. It is helpful in responding to these RFEs to use them as training tools. You can point out the information and evidence already submitted and can link it to the respective elements you are trying to prove. If possible, add any additional information or evidence, even if it is only one additional piece of evidence. Explain in detail in a letter brief how the case meets the requirements for the relief. See Appendices U and V: Sample Response to Request for Further Evidence A and B. As with the initial application, you might want to prepare an index connecting the evidence to the elements you are attempting to establish. The clearer the application the less likely you will get an RFE, NOID or denial. Denials usually occur because you have not responded to an RFE, because your client failed to complete his fingerprints, or because you did not meet your burden to prove your client’s eligibility for the relief sought. Denials of T visa, U visa, and VAWA petitions generally do not trigger issuance of a Notice to Appear (NTA) in Immigration Court. Unless your client is already in removal proceedings or has had a prior order or outstanding order of removal, once a VAWA, T visa or U visa application is denied the file is closed. Most SIJS petitions are filed concurrently with an adjustment of status (AOS) application, so there is some risk of being placed in removal if either the SIJS petition or the adjustment application is denied. CIS is more frequently issuing NTAs when AOS applications are denied. Thus, if the underlying SIJS application is denied, the adjustment application will be denied and CIS could issue your client an NTA. If you wish to appeal the denial of a T visa, U visa or I-360 VAWA self-petition, you will need to file a Notice of Appeal with the Administrative Appeals Office (AAO).3 There is a form and fee or fee waiver involved, and you should brief the issue and why the denial is incorrect. See Appendix W: Notice of Appeal. Prior to an appeal, you might want to try some other options. You can ask for “Supervisor Review” of a denial, and outline in a letter brief why the denial is incorrect. See Appendix X: Request for Supervisor Review. For Motions to Reopen you will need to include a fee, which you can request to have waived by completing a fee waiver. See Appendix Y: Sample Motion to Reopen and Reconsider. Political asylum cases may be denied by CIS if your client has an existing valid visa. Most political asylum cases that are not granted are referred to Immigration Court. In Court you can apply de novo for political asylum.4 You should also counsel your client what they should do to prevent a revocation of a U or T visa that has been granted.5 Both visas (with some exceptions for T visas in relation to age or trauma) require the recipient to remain helpful and cooperate to law enforcement in investigating, prosecuting, and taking legal action the underlying criminal activity. This duty remains even after the U visa or T visa is granted, and if law enforcement deems that the victim is unreasonably refusing to provide assistance after the U visa or T visa has been granted per INA § 214(p)(1)/8

3

The procedures for the appeal are set forth in 8 CFR § 103.3. For an example of a T visa appeal brief, please see The Georgetown Journal on Poverty Law & Policy, “An Appeal of a T Visa Denial,” Volume XIV, No. 3, Fall 2007. Due to the length of the appeal brief, we have not included it in this manual. 5 Process for revocation of a T visa can be found at 8 CFR § 214.11(s) and for U visas at 8 CFR § 214.14(h). 4

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USC § 1184(p)(1), may ask CIS to revoke the visa. The Department of State can also ask CIS to revoke a derivative U visa or T visa or a principal U visa of applicants abroad if they believe that the visa was issued in error. CIS will send a Notice of Intent to Revoke (NOIR), allowing you 30 days to provide a response if you believe this NOIR was sent in error. A qualifying derivative family member’s derivative U or T status can also be revoked, if the relationship to the principal U visa or T visa recipient has been terminated (e.g., by divorce), or also if the principal U visa or T visa’s recipient’s status is revoked (e.g., because the law enforcement officer withdrew the initial certification of helpfulness or disavowed it). For these reasons, it is important to have a conversation with your client about their ongoing duties to cooperate with law enforcement, even after a U or T visa has been granted, and to keep in mind how family dynamics and conflicts of interest can affect an individual’s legal status.

§ 11.4 Cases in Removal Proceedings With cases in removal proceedings, the general practice is to conduct a master calendar hearing to plead to the charges and to advise the court as to any potential immigration relief for which your client is eligible. If your client is eligible for a T or U visa, the immigration judge is able to either administratively close the proceedings or reset the master calendar hearing to a later date to allow you to file the T and/or U visa application.6 If you are reset for a later master calendar and have not received a decision on your client’s T or U visa, you can provide the Court and the Assistant Chief Counsel copies of the CIS Receipt Notice proving that a T or U visa has been filed on behalf of your client. At that point the Court can either administratively close proceedings or again reset the hearing to a later date. See Appendix Z: Sample Motion for Administrative Closure of Removal Proceedings. At the point that your client is granted a T or U visa, you will want to move to have the removal proceedings terminated. Either you or the Assistant Chief Counsel can prepare a motion to terminate removal proceedings. It is probably quicker if you prepare the motion. You may also want to fax or scan and email a copy of the approval notice to the Assistant Chief Counsel, if she or he is amenable. With a copy of the approval notice, he or she can then advise you as to the Government’s position on your motion to terminate. If the Government does not oppose the motion, you can state that in the motion to terminate, which will also allow the Court to render a decision faster. See Appendix AA: Sample Motion to Terminate Removal Proceedings. As with all motions, you will want to include a proposed order. If the removal proceedings were previously administratively closed upon the filing of the visa application, you will need to file a motion to recalendar and terminate proceedings, which can be done within the same motion. See Appendix BB: Sample Motion to Recalendar and Terminate Removal Proceedings. If your client is filing a VAWA self-petition or an SIJS petition, the Court will usually reset the master calendar hearing to allow you to file the underlying petitions with CIS. Once the

6

Note that administrative closure only means the Court has taken your case off calendar. The court still retains jurisdiction over your case, and the case can be put back on calendar at the request of either you or the Government.

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petitions are approved, the court will adjudicate the applications for adjustment of status. Sometimes the Government will be amenable to terminating proceedings in order for CIS to adjudicate the application for adjustment, but normally the Court will retain jurisdiction and review the application for adjustment. Once the VAWA self-petition is approved, if your client must wait for an available visa, then the Court will likely administratively close the case. When a visa becomes available, you will need to re-calendar the case through a motion to re-calendar, and then file for adjustment of status before the Court. In cases of political asylum, your application would be filed in Court with the normal advisals, and the Court would hear testimony and issue a decision. The one exception is cases involving minor applicants. In these cases, the application would first be reviewed by the asylum office assuming it had not been reviewed previously by that office. If the asylum office did not grant political asylum, then the case would be referred to Immigration Court. For cases in Immigration Court, you have several protections for your client. First, even before your client’s hearing, you may contact the Court, advise the court that the case involves a survivor of human trafficking, and request that your client’s name not appear in the automated system or notices of hearings posted at the Court. During master calendar hearings you can request that the attorneys approach the Bench, and can conduct the hearing at the Bench. Another seldom used but available possibility in cases of extreme sensitivity and/or where safety is of grave concern is for the Judge to clear the courtroom during your client’s portion of the master calendar hearing. If the Judge is not aware that your case is a trafficking case and that you have these concerns, you should let the Judge know immediately at the outset of the hearing, or if possible in writing prior to the hearing. Finally, in cases adjudicated in court such as political asylum, it is possible to ask the Judge to excuse or exclude everyone who is not part of the hearing from the courtroom. Again, this protects the safety of your client, and it makes it easier for your client to talk about very painful events without an unnecessary audience.

§ 11.5 Cases with Orders of Removal Generally, if your client has an order of removal issued within the past 90 days, you can file a motion to reopen, assuming this is your first motion to reopen. For subsequent motions or for orders of removal that are past the 90 days, you may need the Government to join you in the motion. Again, there are some exceptions to this requirement, for example in VAWA cases. If possible you will want to do a motion to reopen the matter, explaining why the information about human trafficking could not have been presented previously. If your client has an expedited order of removal (usually from the border) and is granted a U visa, the expedited order of removal automatically terminates. If your client’s order was issued by an immigration judge, you do not need to do a motion to reopen and to terminate proceedings in order to apply for the U visa or to apply for adjustment of status for a U nonimmigrant. However, you want to reopen and terminate the proceedings to remove your client from the

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National Crime Information Center (NCIC) database. Without doing this, your client will likely still appear to have a final order of removal in federal databases. Note that filing for a T or U visa may not prevent the Government from trying to remove your client. If you are aware of an outstanding order of removal, you should immediately prepare a Request to Stay Removal and/or request an expedited prima facie determination from the Vermont Service Center. Usually this Stay is filed with Immigration and Customs Enforcement (ICE) in your local office. It is filed with a fee and proof of eligibility for the visa and proof of filing for the visa, if you have it. Please be aware that you may need to advocate strongly for ICE not to remove your client pending a decision on their T or U visa. Given that your client is a trafficking survivor, you may want to seek the assistance of the ICE agent working with human trafficking cases. ICE personnel who handle trafficking cases, usually in the Homeland Security Investigations (HSI) unit, are working in a different unit for a different purpose from the detention and removal personnel in ICE. Thus, the officers working on human trafficking cases may or may not be aware of the efforts to remove your client. If the client’s T visa application is successful, you should file a motion to reopen and to terminate proceedings concurrently based on the newly granted status of your client. Federal regulations governing T visa status expressly states that if the Service grants an application for T nonimmigrant status, a final order “shall be deemed canceled by operation of law as of the date of the approval.”7 You will want to contact the Office of Chief Counsel as a courtesy to inform them of the approval and to request that they either join in your motion or make no objection. Even if you receive no response from Chief Counsel, you can file your motion to ensure that your client’s immigration record is correctly updated with her lawful status. For VAWA self-petitions, SIJS petitions and political asylum, it will be crucial for you to try to seek a motion to reopen to allow your client to file for relief. Be careful with cases where your client has already been removed, because ICE may seek to reinstate the removal order; thus, not giving your client an opportunity to seek the relief for which they may be eligible. In cases of reinstatement of a prior removal order, if your client expresses fear of return, she is eligible for a credible fear interview. If the asylum officer conducting the interview finds reasonable fear, the case is transferred to Immigration Court for a hearing.

§ 11.6 Reunification/Repatriation to Home Country While it is typical that survivors of human trafficking wish to remain in the United States after leaving their traffickers, there are some survivors who will want to return to their families and to their home country. While the team may be focused on efforts to assist and stabilize the survivor in the United States, as her advocate you should discuss with her all options, including those of returning home if she chooses. You can give her as much information as possible. Ultimately it is her decision, and make sure to let her know it is her choice. She will be very

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8 CFR § 214.11 (d)(9).

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sensitive to any expressed or implied value you place on any one choice, so to the extent possible try to provide information about each choice while withholding any judgment.

§ 11.7 Safety Concerns in the Home Country Some considerations to cover with your client when she is evaluating the option of returning home are the potential responses of her traffickers, if any, and the ability of her government to protect her in the event her traffickers seek to extort money, threaten revenge, or attempt to re-traffic her. You can also discuss with your client the potential reaction of her family and friends to news of her trafficking, including disbelief, fear, anger, rejection and/or shame. You can help your client assess whether she can count on her family to be supportive and to provide protection, or whether her family may ostracize her because of fear or shame. In addressing safety concerns in the home country, human rights reports and the trafficking in person (TIP) reports can shed some light on successes and failures in addressing human trafficking in the home country. It might be wise to determine if there are any nongovernmental organizations (NGOs) in the home country that can give you and your client more information about the extent of human trafficking in that country, as well as the governmental and nongovernmental systems of protection, if any. Find a way to assist your client objectively review the information on safety and protection or lack of it in her home country. She may not want to admit she is vulnerable, or her desire to return home may be so strong that she does not carefully evaluate any safety issues. Once she returns home, her ability to return to the United States will be very limited, so the decision to return home should be considered carefully.

§ 11.8 Services Available in the Home Country Some countries have been confronting and addressing human trafficking and the needs of survivors for many years, longer in some cases than the United States. As such these countries have created NGOs, which provide services to human trafficking survivors and advocate for changes in the countries’ laws and practices. Nevertheless, an important component of the decision to repatriate is the availability of access to justice and services on returning home. Access to justice would include the ability to get a restraining order if your client is being threatened or stalked by the traffickers. Her ability to seek civil redress in order to be paid for the work she performed is another legal issue. Child custody for those women who have been raped by their traffickers and had their children taken away as well as divorce for those women who have been forced to marry their traffickers are also legal services that may be important to survivors. In evaluating services in the home country, legal services such as those mentioned here should be included. An evaluation of services in the home country should also include medical, dental and mental health services, shelter, education and job training, and safety planning. Some of these

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services may exist but are only available to persons with money. Other resources may only be available in large metropolitan areas, far from the homes of survivors. If transportation is difficult, these services may not only be unaffordable but also inaccessible. Working with NGOs in the home country, you and your client can look not only at safety issues, but also available services.

§ 11.9 Possibility of Return to the United States As mentioned above, once your client leaves the United States it may be difficult for her to return to the United States legally in the future. One of the greatest obstacles is the unlawful presence bars. If your client has been in the United States for more than 180 days and less than a year without status, her departure from the United States for any reason will trigger a three-year bar. If she has been unlawfully in the country for a year or more, her departure from the United States will trigger a ten-year bar. There may be ways for the FBI and ICE to parole her into the United States to testify at a hearing, but other immigration possibilities could prove difficult. Theoretically, if she arrives at a port of entry and can show that she is present at the port of entry on account of trafficking, she might still be eligible for a T or U visa, as well as possibly political asylum. In this scenario and/or if she enters the United States undocumented and applies for a T or U visa, she may be eligible for waivers for the unlawful presence bars. However, either of these options poses a risk and may place her at the mercy of traffickers again. Because of the difficulty of returning to the United States legally once she has departed, this information should be discussed with your client in depth, and if possible you should provide the client with the advice in writing as well, having her sign that she understands the advice.

§ 11.10 Providing Resources to Client and Connecting with NGOs in Home Country Assuming after reviewing all the pertinent information with your client, she continues to express her desire to return home. At this point, you should obtain and provide to your client as much information on resources and NGOs in her home country. The information should include contact names, addresses and phone numbers if possible. The more resources your client has on returning to her home country the better prepared she will be to access any needed services and thus stabilize her life on her return. If your client authorizes you to release information, you may want to give NGOs in her community or near her home town your client’s name and potential types of services she will need on her return. Be careful to obtain the release in writing so as to avoid disclosing confidential information without your client’s permission.

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§ 11.11 Remaining in the United States, but Not Pursuing Immigration Relief Some human trafficking survivors may not want to wish to leave the United States, but may refuse to pursue immigration relief because of the risks they perceive or their desire not to cooperate with law enforcement. This scenario may be even more difficult to assess and evaluate than the option to return home, but it is an option your client might elect. As an officer of the court you cannot advise your client to remain in the United States illegally, but as a zealous representative of your client you need to ensure she has as much information as possible. Ultimately the decision will be hers. Risks of Remaining Undocumented One of the risks of remaining undocumented is the possibility of being discovered by ICE and placed in removal proceedings. While this risk means your client will be living underground and on edge, it does not necessarily eliminate her options to seek immigration relief in removal proceedings should they be initiated. If your client is considering this option, you may want to determine if she has a prior order of removal that would mean she could be removed without a hearing if she is discovered. Barring any prior orders of removal, you should advise your client to request the opportunity to consult an immigration attorney and to have a hearing before an immigration judge if she comes to the attention of ICE. Your client may also be more easily re-trafficked or exploited by another person (e.g., in a domestic violence relationship) based on her immigration status. Because your client may also suffer from trauma, she may need ongoing counseling for what healthy relationships look like, and resources on worker’s rights (including undocumented workers). Living underground (e.g., working without authorization and driving without a license, etc.) can take an emotional toll on your client, but she may feel that this burden is preferable to participating in criminal proceedings against her traffickers. She may be fearful of her traffickers taking revenge on her family back home, or she may feel morally obligated to her traffickers for a debt and not have any desire to speak ill of them. In these cases you can provide your client with information and options, but if you try to pressure or convince her to pursue reporting the trafficking in order to get immigration relief your client may disappear completely. Other risks of remaining undocumented may include the ability of the traffickers to retain control over the survivor given her undocumented status. Options for leaving the area will be more limited because travel could prove difficult and could expose the person to discovery by immigration. Employment opportunities are more limited for undocumented people. Possibilities of Employment Without work authorization, the survivor will need to work with false documents or for cash. Either way the options for employment will be limited. Generally, jobs that are available to undocumented persons do not provide health care or retirement benefits. These jobs are more often than not seasonal and/or vulnerable to economic downturns.

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Again, it is important to discuss the difficulties with finding and retaining employment while undocumented. However, the survivor will be weighing many considerations, and employment may be only one of these factors. Issues of Travel to Other Regions of the United States Many modes of transportation require photo identification; thus, travel to other regions of the United States can prove challenging. Remaining undocumented may mean that it is harder for the survivor to relocate quickly if she feels threatened. In addition to travel, moving into a new area, renting an apartment and obtaining employment or education can be difficult generally. But for someone who is undocumented the challenges are much greater. The survivor may be unable to rent an apartment without state identification, and the state may not provide identification without proof of legal immigration status. Another concern is that should your client change her mind to pursue her immigration options, travel may complicate how easy it is to report her case to law enforcement, who may want to interview her in person. Thus, travel and relocation are complicated by lack of immigration status. Impact on Pursuing Immigration Remedies in the Future If your client declines to pursue immigration relief or other legal remedies, you must counsel her on the impact of this decision on all of her legal options. She may be ready a few months or years later to move forward with her case but have no idea how that delayed decision to move on her legal options may affect her future immigration options. Your client should be informed of some of the following concerns: T Visa: T visas require that the applicant satisfy the requirement of “is physically present in the United States on account of trafficking.”8 For victims who escape their trafficking situation without law enforcement assistance, they must demonstrate that they did not have a “clear chance to leave” the United States in the time between escaping their traffickers and being in contact with law enforcement.9 Thus, the more time that lapses between your client escaping her situation and reporting to law enforcement, the more likely CIS may issue an RFE or question your client’s ability to satisfy this element. However, the law provides that your client can include proof of “trauma, injury, lack or resources, or travel documents that have been seized by the traffickers” to show why your client did not leave and/or report her case immediately.10 Additionally, as time lapses, your client might be more likely to leave the United States and take trips abroad, such as visiting sick family members or to retrieve family members. Your client must also be

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8 CFR § 214.11(g). 8 CFR § 214.11(g)(2). 10 8 CFR § 214.11(g)(2). 9

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counseled explicitly that if she subsequently leaves and returns to the United States, she may no longer be eligible for a T visa unless she can establish that the return was the result of continued victimization by traffickers or a new incident of trafficking. U Visa: Your client must understand that as time lapses between the incident of the crime and reporting of the crime to law enforcement, she may jeopardize her ability to qualify for a U visa. U visas are extremely dependent on the discretion of law enforcement to issue a certification, and practices, protocols, and procedures vary greatly from law enforcement agency to agency. Law enforcement may be more skeptical and less willing to take down reports and interview your client if they perceive that the case is less viable to investigate and prosecute. They may also believe that your client is only reporting their case for immigration reasons, and not out of fear and safety concerns. VAWA: If your client has the option to pursue VAWA, she must be informed that she must apply for VAWA within two years of the final judgment of dissolution (divorce). After two years from the date of divorce, she will no longer be eligible to apply for VAWA. She will also not qualify for VAWA if she re-marries before a VAWA petition is approved. Asylum: The current law on asylum in the United States has a “one year bar” that requires that “clear and convincing evidence” be provided that the applicant filed their asylum application within one year of arrival in the United States. Demonstrating an applicant’s changed or extraordinary circumstances for the delay in filing can be used to overcome this one-year bar. Many asylum officers and immigration judges will want to see that an applicant clear this one-year bar before moving on to the merits of the applicant’s asylum case. Remember that all of these determinations are discretionary. Thus, delays in your client applying for asylum will greatly impact her chance of receiving asylum.

PART TWO: SECURING LEGAL RELIEF FOR YOUR CLIENT § 11.12 Choosing Whether to Seek Immigration Status Before work begins on an application for immigration relief, the standard precautions apply in human trafficking cases. First, you will want to meet with your client and screen her carefully to determine eligibility, possibilities of a successful outcome, and any risks should she apply. You will want to determine the veracity of your client’s account, as well as your client’s ability to prove her eligibility. In human trafficking cases, it is important to walk the client through the entire process to ensure that she is comfortable with the requirements, such as “complying with any reasonable request of law enforcement.” Because trust has been violated in the past, it may take longer for your client to trust you and to tell you details of her trafficking.

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If the client is severely traumatized or suicidal, she may need to be provided psychological services first before any legal options are pursued. Stabilizing a client emotionally and physically may have priority over legal relief. The legal process is not designed to be warm and fuzzy. As part of any legal process, you will need to ask your client difficult questions; she will need to talk about very traumatic events; and sometimes you will be working under strict time limitations. Thus, pursuing legal remedies may need to wait, if possible.

§ 11.13 Choosing Which Status to Pursue In a majority of human trafficking cases, the most logical form of relief to seek is a T visa. A T visa is specifically designed for survivors of human trafficking, and the CIS officers adjudicating T visa applications are familiar with the elements of human trafficking. When filing a T visa, you do not need to submit a law enforcement affidavit (Form I-914, Supplement B). Secondary evidence of cooperation with law enforcement is sufficient. Example: Dan was recruited by his wife’s relatives to work in construction. He was promised good wages, and so he accepted. When he began to work, he found that his boss would only pay him sporadically or not at all. There were promises to pay at some date in the future, but those promises were never fulfilled. When Dan confronted his boss about the pay, his boss threatened Dan and his family. Dan knew that they had mafia connections and could hurt him and his family if he insisted on pay or tried to walk away from the job. At one point Dan’s boss tried to “pay” Dan’s wages through giving him a vehicle; however, later the vehicle was repossessed because Dan’s boss did not own title and had not paid the loan on the vehicle. Dan had been conned by the boss, and was still working without pay. Later Dan’s boss was arrested for other acts of fraud and Dan testified in that case. When Dan reported his trafficking to law enforcement, a report was made but law enforcement was not sure that they would pursue the trafficking charges, since other charges had been filed against the trafficker that carried stiffer sentences. Dan requested a law enforcement affidavit in writing, but did not receive one. When filing for his T visa, Dan included evidence that he reported his trafficking and had requested a law enforcement affidavit. This secondary evidence was sufficient to establish that he complied with any reasonable request for assistance from law enforcement. T Visa or U Visa? Most of the time, legal advocates will choose between filing a U or T visa for a trafficking survivor. Note that it is possible to file simultaneously for a U and a T visa, but because individuals are not allowed to have U and T visas simultaneously for the same crime, your client will ultimately have to choose only one visa. Thus, it is important to compare the two options on the bases of the following considerations: law enforcement certification (necessary for U visa applications, but not T visa applications), benefits (usually more available for T visa applicants and recipients), legal elements, waivers of inadmissibility (broader for U visa

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applicants), removal proceedings and prior orders of removal and deportation (usually easier to terminate for T visa recipients), adjustment of status (usually faster for T visa recipients), immigration status for derivatives (I-929 process available for U visa recipients, but not T visa recipients and their derivatives), if the crime occurred many years ago (longer statute of limitations for U visa applications), and caps and effects on adjudication time (usually T visa are adjudicated faster, and although there are less visas available, have yet to hit the cap like U visas have in the last few years). Benefits In some states, public benefits are available to persons who attest to being victims of human trafficking. If an agency also submits a letter stating it is working with the person as a victim of human trafficking, that person may be able to get some state public benefits for a brief period. Interim benefits are designed to bridge the gap until the survivor is certified (granted Continued Presence or a T visa), at which time she is eligible for federal public benefits. In California under SB 1569, your client may be eligible for state benefits before their T visa is filed, but only eligible for state benefits after their U visa is filed.11 Certain unaccompanied minors, Continued Presence recipients, principal T visa recipients, and derivative T visa recipients are also eligible for federal refugee benefits; however, recipients of only U visas are not eligible for such benefits.12 For many survivors the public benefits available when applying for and after being granted a T visa are crucial to assisting the person stabilize their living situation. See Appendix CC: Sample Letter for CalWorks. See also Appendix DD: Sample Letter to Social Services. However, be aware that most state and local government agencies are more familiar with U visas than T visas, and may be confused about benefits eligibility for T visa applicants and recipients. Legal Elements Compared to preparing a declaration for a U visa application, it can be more timeconsuming or difficult to argue and meet all the elements of a T visa. T visas, require proof that the person is a victim of “severe forms of trafficking in persons,” and it can be difficult to write a narrative that fully captures the complexity of the client’s trafficking experience (recruitment, obtaining, transporting, etc.), means (force, fraud or coercion), and end (involuntary servitude, peonage, debt bondage, etc.) The broad array of crimes that may qualify someone for a U visa (such as domestic violence, rape and kidnapping, in addition to trafficking) mean that there are more legal theories and approaches to qualify your client for a U visa than a T visa. Hence, but for the law enforcement certification requirement, in theory every T visa applicant qualifies to also apply for a U visa, but not all U visa applicants can qualify to apply for a T visa. Another difficult T visa element that can be difficult for a survivor to prove is “will suffer extreme hardship involving unusual and severe harm if removed from the United States.” The survivor may come from a wealthy, seemingly developed country (such as Western Europe and

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For more information, visit www.nilc.org/benefitsca.html. For more information, visit www.nilc.org/access-to-bens.html.

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Canada) and not face extreme hardship upon removal. While factors relating to extreme hardship do not have to be related to the trafficking (e.g., pre-existing medical and mental conditions), 8 CFR § 214.11(i) specifics that economic need is not considered relevant for extreme hardship consideration. Arguments that your client has no job opportunities in the other country may be insufficient, so it is important to clarify if your client faces a potential situation where economic and job-related issues may lead to their re-trafficking if returned to their home country. U visas do not have a requirement to prove extreme hardship upon removal from the United States. The T visa element of physical presence “on account of” trafficking may also prove to be a decisive factor in whether or not you file for a U visa or a T visa. Unlike T visas, U visas do not require demonstrating that your client has not left the country since the last act of trafficking and that they are physically present “on account of” the trafficking.13 In fact, you can even help a client apply for a U visa abroad. The T visa also requires under this element that the applicant demonstrate that they had a “clear chance to depart” in the time between escaping their traffickers and being in contact with law enforcement. The U visa does not have this requirement. However, T visa applicants can overcome this element with other evidence of “trauma, injury, lack or resources, or travel documents that have been seized by the traffickers” to show why your client did not leave and/or report her case immediately.14 However, the longer the time lapse between the last incident of trafficking and the reporting of the case, the more likely you will be challenged on this prong. One common element between U visa and T visa applicants is the requirement to cooperate with law enforcement, but proving this element is different for each visa. Ultimately the primary and significant challenge to filing a U visa is the law enforcement certification requirement. Generally, law enforcement tends to be more familiar with issuing U visa instead of T visa law enforcement certifications. Certain law enforcement agencies only have U visa certification protocols, but do not have any for issuing T visa certifications. However, unlike T visas, it is not possible to file a U visa application with secondary evidence of cooperation with law enforcement. Thus, the law enforcement agency must be willing to sign a certification in order for you to file a U visa petition on behalf of your client. The other issue with U visas is the requirement to prove your client suffered substantial physical or mental abuse as a result of the trafficking. If the coercion and control were subtle or culturally-based psychological manipulation, this element may be more difficult to establish; but it is not impossible and a psychological evaluation may be helpful. However, it can pose a challenge to meeting the elements of a U visa. For T visas, adult applicants must cooperate with any reasonable requests for assistance from law enforcement in legal actions against human traffickers.15 Victims of trafficking under the age of 18 and applicants that qualify under the trauma exception are exempt from this requirement. While there is not a set standard of what qualifies someone under the trauma exception, evidence from mental health and medical professionals should be submitted to support a claim of severe psychological or physical trauma. However, the trauma exception is intended for extremely exceptional circumstances, and it is likely that based on current indicators

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8 CFR § 214.11(g)(2). 8 CFR § 214.11(g)(2). 15 8 CFR § 214.11(g). 14

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that CIS may find that many victims of a severe form of trafficking in persons suffer comparable levels of trauma as other crime victims, and therefore required to cooperate with law enforcement. Waivers of Inadmissibility Another major consideration in filing a U visa or a T visa is to consider what grounds of inadmissibility you need to waive for your client. In order to obtain either a U or T visa and admission to the United States, the applicant must either prove their admissibility or waive the ground of inadmissibility listed in INA § 212. Your client as a trafficking victim may need to waive inadmissibility grounds. The inadmissibility grounds are grouped in several major categories, including prior immigration violations, criminal offenses, contagious or dangerous diseases or conditions, and terrorist and national security risks. T visa applicants must demonstrate that their inadmissibility is caused by or incident to the trafficking victimization, and it is in the national interest to waive the inadmissibility.16 U visa applicants enjoy a much broader array of ability for CIS to waive all inadmissibility groups if the waiver is in the public or national interest, and the inadmissibility need not be caused by the enumerated crime for which the U visa is being submitted.17 Both T and U visa applicants cannot waive inadmissibility grounds based on Nazi persecutions, genocide, acts of torture, or extrajudicial killings. Thus, if your client has committed previous crimes or acts to trigger inadmissibility grounds that are unrelated to the trafficking that forms the basis of the T visa application, it may be worth asking about recent practices to see how lenient CIS is being with granting these waivers of inadmissibility. In those cases, it may be worth considering filing a U visa and accompanying waiver of inadmissibility instead. Additionally, if the waiver of inadmissibility is not properly handled during the U or T visa application stage, it may cause problems when your client adjusts their status to legal permanent residency and her file is examined again. Removal Proceedings and Prior Orders of Removal and Deportation Most of the time, your client will benefit more from a T visa instead of a U visa if they are in removal proceedings. A U visa recipient in removal proceedings must file a joint motion with ICE to terminate removal proceedings if U status is granted.18 For U visa recipients, orders of exclusion, deportation, or removal issued by an Immigration Judge or the BIA must be reopened and terminated to be cancelled. But for U visa recipients, administrative orders of removal (e.g., expedited orders of removal by CBP at the border) automatically terminate upon a grant of a U visa. Conversely, the grant of a T visa automatically, by operation of law terminates any pending removal proceeding initiated against the victim, in addition to any past final orders of removal or deportation.19

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8 USC 1182(d). 8 USC 1182(d)(14). 18 8 CFR § 214.14(c)(1)(i). 19 8 CFR § 214.11(d). 17

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Adjustment of Status T and U visas have slightly different processes for adjustment of status to legal permanent residency to consider. Timing wise, T visa holders have the opportunity to apply for adjustment sooner than U visa holders. All T visa recipients who apply for lawful permanent residency must prove either that 1) they have had continuous physical presence in the United States for three years from the date of the T visa approval or 2) that the investigation or prosecution of the qualifying trafficking violation is complete.20 All U visa recipients must demonstrate physical presence in the United States for a continuous period of at least three years since the date the U visa approval.21 However, specifically, T visa holders must show good moral character during continuous presence. Specifically, any T nonimmigrant who engaged in prostitution or commercialized vice after obtaining such status is statutorily precluded from adjustment of status under INA § 245(l), but eligible if the prostitution occurred before lawful admission as a T visa holder.22 This is especially problematic for trafficking survivors who many have been subjected to sex trafficking and have returned to the sex work industry. Immigration Status for Derivatives There are some minor differences between U and T visa derivatives. A U or T visa applicant under 21 at the time of filing may include the spouse, children, parents, and unmarried siblings under the age of 18.23 A U or T visa applicant over 21 can include as derivative applicants his or her spouse and unmarried children under the age of 21. T visa applicants over 21 years of age can also apply for their parents and unmarried siblings under the age of 18 if they can demonstrate that the family member faces a present danger of retaliation as a result of the principal applicant’s escape from trafficking or cooperation with law enforcement. Formerly, available derivative statuses included spouses (U-2/T-2), unmarried children under 21 (U-3/T-3), parent of an applicant under 21 (U-4/T-4), unmarried siblings under 18 years of applicants under 21 (U-5/T-5). However, in March 2013, Congress enacted several changes to the William Wilberforce Violence Against Women Act (VAWA) and Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) that expanded T-derivative statuses. CIS has created what will likely be a “T-6” category that are the grandchildren, stepchildren, niece(s) or nephew(s), and the sibling(s) of the principal applicant. For the children of a derivative to qualify for T-derivative status, the child (adult or minor) must also “face a present danger of retaliation as a result of the alien principal’s escape from the severe form of trafficking or cooperation with law enforcement.” CIS will determine what this means in the context of petition adjudication. This expansion has not extended to U visa recipients.

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INA § 245(l)(1)(A); 8 USC § 1255(l)(1)(A); 8 CFR 245.23(e)(2)(i)(B). For more information about U and T visa adjustment requirements, see http://iwp.legalmomentum.org/immigration/humantrafficking/tools/HT_T-Adj-of-Status-Fact-Sheet.pdf, www.asistahelp.org/documents/resources/U_adjustment_regs_summary_C469B70A9DB47.pdf and www.asistahelp.org/documents/resources/U_adjustment_fees_fact_sheet_995F8DF19D063.pdf. 21 8 CFR 245.24(b). 22 8 CFR 245.23(g)(5). 23 8 CFR § 214.11(o)(1).

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As a practice pointer, if your client is not married to the potential spouse before the U or T visa is filed, that individual will not be eligible for derivative U or T nonimmigrant status. Because of this, if you are assisting your client in filing for either a U or T visa, counsel the couple carefully about their marital status. When adjusting their status to legal permanent residency, the principal U-1 nonimmigrant status holders can apply for family members who have never held a derivative U nonimmigrant visa. The principal U-1 holder must file a Form I-929 concurrently or subsequent to filing their Form I-485, Application for Adjustment of Status. If the Form I-929 is approved, qualifying family members in the United States may file a Form I485. Qualifying family members outside the United States may visit a U.S. embassy or consulate to obtain their immigrant visas. Unlike U visas, T visa holders cannot file Form I-929 for family members who have never held derivative T nonimmigrant visas.24 If the Crime Occurred Many Years Ago Laws require that the applicant have filed the T visa within one year of January 31, 2002 if she was victimized prior to October 28, 2000 or establish exceptional circumstances why she could not have filed within that time, and that she show extreme hardship involving unusual and severe harm if removed from the United States. Exceptional circumstances may include severe trauma, either psychological or physical, that prevented the victim from applying within the allotted time.” 8 CFR 214.11(d)(4). Some trafficking cases may not meet these requirements. U visas are available for persons who have been, are being, or are willing to be helpful to law enforcement in the investigation of the crime, so it is possible to file for a U visa even when the trafficking event occurred years before, if law enforcement is willing to sign the certification form (I-918, Supplement B). The trafficking case may be an old case, and she did not file previously because she did not recognize herself as a trafficking victim until much later. In these cases, it may make more sense to consider filing a U visa. Caps and Effects on Adjudication Time For both U visas and T visas, there are annual caps with respect to the number of visas that CIS can issue for principal applicants [5,000 T visas and 10,000 U visas per fiscal year]. Until 2010, those caps had not been reached, but by mid-2010 the annual U visa cap was reached for the first time. Thus, in terms of deciding which type of visa to pursue, the possibility of visa availability should be taken into account. VAWA Some clients may be eligible for self-petitions under VAWA or to remove conditional residence based on battery or extreme cruelty. For these clients, the most important factor may be keeping or obtaining permanent residence sooner. For those with conditional residence, removing the condition will allow her to retain her permanent residence and apply for U.S.

24

See www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1b153 06f31534210VgnVCM100000082ca60aRCRD&vgnextchannel=ee1e3e4d77d73210VgnVCM100000082c a60aRCRD.

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citizenship sooner. For VAWA self-petitions, if she is married or was married in the past two years to a U.S. citizen (say in an intersection case of human trafficking and domestic violence), she would be able to file a VAWA self-petition with an application for adjustment of status and obtain permanent residence within six months to a year. In the case of T and U visas, the survivor will be eligible to apply for permanent residence at the end of her third year of the visa. Thus, if obtaining lawful permanent residence quickly (in order to travel outside the United States or in order to apply sooner for U.S. citizenship) is important to the survivor; then a self-petition through VAWA might be preferable. The other advantage of the VAWA self-petition or petition to remove a condition on her residence is that neither requires her to cooperate with law enforcement in the investigation and/or prosecution of her trafficker(s). Only some types of trafficking cases would fall within the parameters of a VAWA selfpetition or petition to remove the condition on permanent residence, so this form of relief is not available to all human trafficking survivors. VAWA self-petitions only permit children as family members to be derivatives of the petitions; thus, if other family members are in danger it might make sense to file for a U visa or T visa application and bring the family members to the United States as derivative U or T visa holders, as long as the family member was not one of the traffickers or perpetrators of the crime. As discussed above, if the survivor is under 21 years old, it is possible to apply for a spouse, children, parents, and siblings under 18 years old as derivatives of T or U visas. For survivors 21 years old or older, it is possible to apply for children and a spouse. Additionally, once T and U visas are approved, CIS issues work authorization automatically to any applicant who requests one. For VAWA self-petitions, an application for work authorization must be filed after the VAWA self-petition is approved. SIJS In the case of SIJS for minors, your client can apply for adjudication of adjustment of status to permanent resident concurrently with his SIJS I-360 self-petition; thus, receiving permanent residence quickly. But in order to file for SIJS, he must obtain a special order from a juvenile court finding that the child cannot be reunified with one or both parents because of abuse, neglect, abandonment or a similar basis in state law. The court’s order, or a social worker’s statement, must be provided at least. This might be possible for unaccompanied minors trafficked into the United States, but may be hard to establish in situations where the minor has been trafficked with one or both parents. If the minor turns 18 years, the Dependency or Probate Court will need to retain jurisdiction over the young person in order for him to file an SIJS petition with CIS. This petition can be filed up until the person turns 21 years old. Asylum Political asylum is another option. However, since a decision not to grant political asylum means an automatic referral to immigration court and the initiation of removal proceedings, this form of relief carries more risk with the application process. The harsh oneyear bar requiring the victim to submit an application within one year of arriving into the United States may also prove problematic. In addition, your client may have difficulty or face retraumatization by having to testify in an interview or hearing about the trafficking. The other

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challenge with political asylum is meeting the “on account of race, religion, nationality, political opinion or membership in a particular social group” requirement. In selecting one or more forms of immigration relief to pursue, you will want to weigh the risks and benefits with your client and determine which meets her needs and possess the fewest risks to her. As mentioned above, it is important to present the information carefully and honestly to your client. Make no promises you cannot keep, and always inform your client that the ultimate decision to grant relief lies with CIS or the immigration judge. She may want to know how strong her case is and what chances of success she has with one option or another. Again, you can give her your best assessment, but will want to let her know that it is your best guess. Trafficking clients have experienced broken promises and violations of trust in the past, so transparency and honesty are important to preserving the attorney-client relationship you are establishing.

§ 11.14 Preparation to File Generally before contacting law enforcement to report the trafficking, you may want to meet at least once or twice with your client. Have your client walk you through the promises, force or fraud that brought them to the United States or their work, their experience once they arrived in the United States or their job, the differences between what was promised and what they experienced, and the details of their working conditions. This process can be useful for gathering information for their declaration, but will also help your client organize their thoughts and remember details, which will be helpful when reporting the trafficking to law enforcement and having an interview with an officer or agent. Talking through the details of the trafficking will be less stressful for your client if it happens first with you in a less formal environment. Of course, this initial step is not possible if your client has been identified by law enforcement and interviewed prior to being referred to you. If the trafficking incident has not been reported to law enforcement, you will want to contact either federal or local law enforcement to report it. The choice of federal versus local law enforcement was discussed previously. If the initial contact is by telephone, you will want to send a brief letter as well. This letter will serve as secondary evidence of cooperation if you are not able to obtain a law enforcement affidavit. If you choose to send electronic mail, request confirmation in writing from law enforcement that they are in communication with you. Generally, an officer, agent, and/or prosecutor will want to interview your client. In most cases, when local law enforcement interviews a victim, the officer will write a report and issue an incident card. This is generally not the case with federal law enforcement agents (FBI and ICE). After the interview you may want to broach with the officer or agent the possibility of signing an affidavit or certification, as well as the possibility of seeking Continued Presence. The officer or agent will rarely agree to sign an affidavit or certification at that time, and will often want to investigate the case further before deciding whether to sign. Keep correspondence with the officer or agent general enough that it does not matter that the trafficker’s attorney receives copies, but specific enough that you can use the correspondence as secondary evidence of cooperation.

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After assessment of the case, you will also want to begin gathering other supporting documentation. The case manager(s) in the case may also want to begin preparing documents that can assist a survivor to obtain public benefits, such as CalWorks/Temporary Assistance for Needy Families (TANF) or other social services. See Appendix CC: Next Door Solutions to Domestic Violence Letter for CalWorks; see also Appendix DD: KGALC Trafficking Letter to Social Services. If a psychological evaluation is helpful, arrangements to do the evaluation may take some time and you will want to discuss the purpose of the evaluation with your client.25 Documentation for extreme hardship may include human rights country condition reports, trafficking in persons (TIP) reports, and NGO reports from the home country. The traffickers may have confiscated identification documents, and so it may be necessary to seek access to those documents through law enforcement or to seek replacements from the home country. Medical reports, if any, will also take time to retrieve since medical facilities need the HIPAA releases and time to copy the files. Remember that your client will be pulled in many directions, since there may also be prosecutors preparing for a criminal trial, civil attorney(s) preparing for a civil trial, medical appointments for your client, counseling appointments, appointments with social services and job training or school. The amount of time your client has to meet with you to prepare her immigration application may be limited, and so you will want to use your time well and be flexible.

§ 11.15 While an Application Is Pending While an immigration application is pending, your client may still need to meet with law enforcement investigators and prosecutors. If possible, you will want to accompany your client to these interviews or drive-alongs. If the adjudication process is taking time and your client’s state public benefits are about to expire, you may need to write CIS to see if they can expedite a decision. This request to expedite might also be important if the stay of removal is about to expire, or the immigration court is growing impatient. Your client’s case manager may want to stay in touch with you about the living situation of your client, and you will want updated contact information. If for your client’s safety, she needs to be re-located out of state, you may need to facilitate transfer of her case to another legal services provider closer to her new shelter or home. In addition to these related issues, CIS may generate a request for further evidence (RFE) to which you will need to respond. See infra, Appendix U and Appendix V: Sample Response to RFE A and B. Your client will receive a fingerprint notice for an appointment at a CIS Application Support Center, and you will want to make sure your client attends.

25

For a national resource, please refer to www.traumacenter.org/clients/reach_svcs.php.

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§ 11.16 Post Receipt of Relief When a T or U visa is approved, she will receive notice of this on a Form I-797. The bottom portion of the form is her indication that her T nonimmigrant or U nonimmigrant status has been approved. The work authorization is a card that arrives separately and sometimes before the T or U approval notice arrives. Once your client receives her T or U approval, you should make sure that she understands the duration of the visa, the window of time she will have to file for adjustment of status if she so chooses, and her rights and responsibilities. In the South Bay region, we have created a form with paragraphs that the client must initial stating the above information plus whether she is eligible to travel or not. We keep the original and give our client a copy of the written advisal. If your office will not retain the case to assist the survivor with the adjustment application to permanent residence, you may want to make sure your client has a list of referrals to agencies that can assist with these applications. You may want to advise your clients about beginning the process to collect documents demonstrating her continuous physical presence in the United States in preparation for the adjustment of status application. Before closing the case, you may want to make sure that the Department of Health and Human Services staff person has received the information of the T visa approval and issues the Certification Letter that will entitle your client to federal public benefits. The Letter is sent to the case manager if known, and if unknown will be sent to the attorney of record in the matter. If you receive the Letter, you will want to make sure your client and/or her case manager gets the original.

§ 11.17 Consular Processing for Derivatives Consular processing of derivative T visas can still be challenging. Two years ago the State Department had only begun to standardize the process and train its personnel. Now more State Department consular and embassy personnel are familiar with T and U Nonimmigrant status, and there are more uniform procedures for issuing these visas. Several challenges we have experienced in the past, and occasionally continue to experience are related to fingerprint appointments versus visa appointments, and repeated requests for more documentation before issuing visas. With respect to fingerprint appointments, derivatives between the ages of 14 and 74 need to be fingerprinted before the Vermont Service Center can approve the T-2, T-3, T-4 T-5, or T-6 visa.26 VSC will send the attorney a packet with fingerprint cards, instructions, and a deadline in which to submit the completed fingerprint cards. The derivative needs to take the packet into the U.S. consulate to be fingerprinted and then the cards must be returned to VSC within the time allotted. Frequently, the consular staff has been confused by the request for fingerprints because they do not have a file for the derivative as yet, and the derivative does not have an appointment with the consulate. When this occurs and because it is so difficult to reach consular staff, we have resorted to seeking VSC help in

26

See http://travel.state.gov/visa/temp/types/types_5186.html for more information.

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contacting the consulate or emailing and faxing the CIS attaché at the consulate, and if necessary trying to reach the Consul General for assistance. Each consulate has to date its own method of handling the fingerprint cards once they are completed. Some consulates prefer to forward the completed cards to VSC themselves, while others will hand the cards back to the derivative to forward on to VSC. It is important that you have your client prepare his or her derivative for either option. See Appendix KK: Sample Instructions for Fingerprinting of Family Members at the United States Embassy (English) and Ejemplo Instrucciones Para Obtener Las Huellas Digitales. It is also important to stress that the

documents should not be opened and sent directly to VSC if possible, not to your office. Because of the deadline for returning these fingerprint cards, it is important for the attorney to stay in touch with the client and his or her derivative to make sure the prints are taken and are forwarded to VSC. Once the derivative T visas are approved by VSC, the files are sent to the Kentucky Consular Center (KCC) for processing. The KCC forwards the files to the appropriate U.S. consulate/embassy. Upon receipt of the files, the consulate/embassy generally contacts the family members to schedule appointments. The family members, or someone on their behalf, must complete Department of State forms, and submit those to the consulate/embassy. At the appointment, the family members are generally required to bring passports and proof of relationship to the principal visa holder; however, frequently these documents are not enough. Thus, the other challenge is requests for additional supporting documents. Sometimes these take the form of repeated requests for proof of relationship, including DNA proof. These requests can and have delayed the issuance of the T visas for as much as 8 months. Given the threats by traffickers to the family members of our survivors, these delays when weighed against the relatively small possibility of fraud (given the under-use of T visas) are dangerous and counter to U.S. policy to protect survivors of human trafficking and their families. Another possible stumbling block for consular processing is the lack of familiarity with U and T visas in some consulates. Compared to other nonimmigrant visas, relatively few T visas and U visas are issued by consulates. Turnover in consular personnel exacerbate the situation. On one occasion, it took calls from the CIS/VSC supervisor to consular officials to affirm the T visa approval notice was valid and the consulate was authorized to issue the T visa. At least one U.S. consulate (in Mexico City) has had a designated consular officer in charge of T and U visa cases. This system of designating an officer to handle these visas, along with standardized procedures for fingerprinting, completing and submitting any required forms, and providing derivatives a list of required supporting documents at the outset make the process less stressful for all involved. Hopefully clearer procedures will also expedite the process, which is all part of serving the survivors of human trafficking. Example: The three minor derivatives of a human trafficking survivor received notification that their T-3 visas had been tentatively approved by Vermont Service Center (VSC). As in the case of most minors under 14 years of age, they received their T-3 approvals without having first to appear at the U.S. consulate in their country for

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fingerprinting per a Request for Further Evidence (RFE) by VSC. Their T visa files were forwarded from VSC to the Kentucky Consular Center (KCC) and then on to the U.S. consulate in their country of origin.27 Once the U.S. consulate receives the file, a consular official will frequently contact the family at the address provided on Form I-914 Supplement A, and will advise the family of next steps. Often the U.S. consulate will wait for advocates or the family to file forms DS-156 and DS-160 and request an appointment. In the case of the three minor derivatives, in order to complete the Department of State forms, the minors needed to obtain passports from their country. The passport agency advised the family that it needed the father’s signature or proof the mother had custody, but the father had long ago disappeared and the mother was never married to the father so there are no divorce papers to establish custody. Working through the survivor’s consulate in the United States, documentation was provided to the consulate’s legal department in order to get a custody finding which would allow the minors to get passports and then would allow the U.S. Department of State forms to be completed and interviews requested. This process takes time and can be of concern when the traffickers are threatening the family of the survivor. In the present case, the legal advocates worked with the survivor and the survivor’s consulate in the United States to get needed documents, while the International Office on Migration (IOM) worked with the family and U.S. consulate in the country of origin.

§ 11.18 Adjustment of Status Even if you are able to successfully obtain temporary immigration status for your client (through, e.g., a U visa, T visa, VAWA, or asylum), most clients are not truly stabilized for their immigration needs until they are able to adjust their status to become legal permanent residents (LPR). See Appendix LL: July 21, 2010 USCIS Policy Memorandum on Changes to T and U Nonimmigrant Status and Adjustment of Status Provisions.

The primary thing is to ensure that your client does not fall out of their hard-earned U or T visa status. U visas and T visas typically only last for four years, and your client will lose status upon expiration of their U or T visa if they do not either apply to extend their status or apply to adjust their status to LPR. For T visa recipients, to be eligible to attain lawful permanent residency, an applicant must demonstrate all of the following factors:28

27

Occasionally legal advocates will receive emails from KCC stating that they have the file of a principal or a derivative who unbeknownst to KCC is present in the United States and has already been issued his or her visa. 28 For more guidance on these requirements and how to provide evidence to satisfy these requirements, see http://iwp.legalmomentum.org/immigration/human-trafficking/tools/HT_T-Adj-of-Status-Fact-Sheet.pdf.

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    

Admission and current status as a T nonimmigrant29 Continuous Physical Presence for three years OR less if an investigation or prosecution is complete, exempting any individual absence of 90 days or less or an aggregate of 180 days or less30 Have good moral character during her continuous physical presence31 Admissible unless waived32 Complied with any reasonable request for assistance during continuous presence33 OR show extreme hardship upon removal34

For U visa recipients, to be eligible for adjustment of status, to be eligible to attain lawful permanent residency, an applicant must demonstrate all of the following factors:35    

Admission and current status as U nonimmigrant36 Continuous Physical Presence for three years, exempting any individual absence of 90 days or less or an aggregate of 180 days or less37 Admissible unless waived Proving applicant has not unreasonably refused to assist in investigation or prosecution

Thus, your client should be informed immediately upon receipt of their immigration status what they must do to: 1) remain in status and 2) avoid jeopardizing their status. They must also have a general sense or timeframe for their ability to adjust. U visa recipients are allowed to adjust after three years from the date of approval while T recipients are allowed to adjust three years from the date of approval into the United States), or sooner if they are able to obtain a letter given by the U.S. Department of Justice demonstrating the completion of a criminal case and your client’s compliance with the criminal case. Unless they receive this letter, your client will be ineligible to adjust. Currently, requests for compliance letters from the U.S. Department of Justice (DOJ) can take several months, and certain criminal cases can take a long time to technically “end” in its entirety due to procedures allowing traffickers to appeal decisions. When possible, send a copy of any existing Continued Presence and I-914 Supplement B Law Enforcement Declaration documents to show that the client has been deemed cooperative with law enforcement. It is also helpful to send along contact information of law enforcement so that the DOJ can contact and

29

8 CFR 245.23(a)(2), 8 CFR 245.23(b)(2). 8 CFR 235.23; INA § 245(l). 31 8 CFR 245.23(g). 32 8 CFR 245(1)(4), (b)(4), (c)(2) and (3). 33 8 CFR 245.23(d), 245.23(f)(1). 34 8 CFR 245.23(d), 245.23(f)(2). 35 For more guidance on these requirements and how to provide evidence to satisfy these requirements, see www.asistahelp.org/documents/resources/U_adjustment_regs_summary_C469B70A9DB47.pdf. 36 8 CFR 245.23(a)(2), 8 CFR 245.23(b)(2). 37 8 CFR 245.24(a)(1). 30

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confirm the cooperation. It is usually best to help your client manage expectations for adjusting their status as meeting the requirements, especially establishing continuous presence and being unable to travel, can be very difficult on them, especially as family members fall ill abroad. Moreover, your client must be informed that even if a U or T visa is granted to them, they must continue to cooperate with the law enforcement investigation or prosecution. U visa and T visa holders must be able to establish continuous presence, and should generally be counseled against leaving the country. If they are gone beyond the allotted, time allowed, they will not be able to adjust their status. Those who might need to travel should be advised of the potential problems that they may face not only leaving the United States and entering the other country, but leaving the other country and re-entering the United States. T visas holders can only travel using advance parole, which is a travel document that eliminates the need for a visa stamp in the passport.38 Also note that if the T holder accrued “unlawful presence,” departure from the United States may trigger a three or ten year bar to future immigration benefits in the United States. If the T holder returns to the country from which they were trafficked, it may undermine the hardship concerns that can be revisited when the adjustment of status is adjudicated. DHS officials at U.S. borders or ports of entry have no authority to grant waivers of inadmissibility. These waivers may only be granted by DHS officials during the adjudication of a T visa or U visa application or a lawful permanent residency application filed by a T visa or U visa holder. They will be unable to reenter the United States, which not only prevents them from applying for adjustment of status, but also their family members from doing so as well. When submitting a copy of the client’s passport in the adjustment application, include a photocopy of all pages of the passport to also demonstrate that the client has maintained continuous presence. After an application for adjustment of status to legal permanent residency has been filed, any T visa holder who does not have advance parole before traveling abroad, will be considered to have abandoned their application.39 To establish continuous presence, some clients, will allow their spouse or someone else to register all things in their name, and so there will be little to no proof that your client has established continuous presence in the United States. It is usually helpful to counsel your client to register at least a bill that can be electronically generated on a month-to-month basis in their name so that in the future you may assist them in creating an online account to easily print out monthly utilities or cell phone bills. Otherwise, declarations from other individuals, tax forms, rent leases, medical bills, school transcripts, documents related to the client’s children, may all contribute to establishing your client’s continuous presence. In order to demonstrate that your client is of good moral character, it is easiest to establish by ordering criminal background history records for your client. This can be done either through state procedures (e.g., Live Scan in California) or through the FBI criminal background check. The latter is recommended if your client has lived in multiple states. If your client has committed any recent crimes, it is best to include the disposition and rehabilitating information in the application. Even if your client swears that they have committed no crimes, it is good policy

38 39

8 CFR § 245.23(j). 8 CFR § 245.23(j).

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and practice to request these records. Sometimes clients do not understand that paying a fine or penalty does not make the arrest or criminal conviction “go away.” Also, be aware that any T nonimmigrant who engaged in prostitution or commercialized vice after obtaining such status is statutorily precluded from adjustment of status under INA § 245(l), but eligible if the prostitution occurred before lawful admission as a T visa holder.40 There may also be issues for your clients to adjust to LPR related to their derivative applications. First, if your clients have derivatives abroad waiting for their applications to be approved and/or to go through consular processing to the United States, do not adjust your client to LPR. To do so before your client’s derivatives enter the United States will cause your client’s derivatives to lose their respective derivative statuses. Your client then will have to resubmit new I-130 family petitions for family members (if possible) as an LPR. If your client’s family is from China, Philippines, India, or Mexico, your client’s family member faces waiting many years before their I-130 family petition is processed, prolonging the family’s separation. If your client’s derivatives are still abroad and they are facing the expiration of their own U or T visa status, they should file a Form I-539 to extend their status while planning to assist their derivatives to enter the country. Second, the April 2011 memo reiterated that U and T derivatives must submit separate applications for adjustment of status from the principal U and T recipients. In that sense, the adjustment applications are different from the original U and T visa application, where all derivative applications are submitted in conjunction with the U and T visa principal. Derivatives U and T can only adjust their status pending on the principal U and T’s ability to adjust their status based on maintaining three years of continuous presence and obtaining a compliance letter of cooperation with law enforcement. If a principal U and T visa applicant’s adjustment of status application is denied, the derivative U and T visa recipient’s adjustment of status application will also be denied. However, the derivative U and T recipient need only maintain continuous presence in the United States upon entry into the country until the principal is able to adjust to LPR status. It is important to screen for potential conflicts of interests before agreeing to represent the principal U or T visa recipient and all separate derivatives together. Unlike the U or T visa application preparation where your main client is the U or T visa applicant, because the principals and derivatives are submitting all separate adjustment of status applications, conflicts of interests may disqualify you from representing and working with all clients. When applying for derivative U or T visa applications, you may or may not understand well the dynamics and relationship between the principal and all derivatives. Some spouses, parents, children, etc. may prove to be abusive, or situations may arise where prolonged separation from family members may create great strain and stress. It is suggested to create attorney-client agreements that structure and acknowledge potential conflicts of interest. Although it is difficult to bind clients legally to waiving all future conflicts of interest without consent from all parties, it at least attempts to address the issue up front.

40

8 CFR 245.23(g)(5).

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CHAPTER 12 TRAUMA AND SECONDARY TRAUMA1

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This chapter includes:

§ 12.9 § 12.10 § 12.11 § 12.12 § 12.13 § 12.14 § 12.15 § 12.16

Experiencing Trauma ....................................................................................... 12-1 Intrusive Phase and Symptoms......................................................................... 12-2 Numbing or Avoidance Phase and Symptoms ................................................. 12-3 Memory and Testimony ................................................................................... 12-4 During the Interview ........................................................................................ 12-5 Before and after Interviews .............................................................................. 12-6 Preparing for Law Enforcement Interviews ..................................................... 12-7 Concepts of Secondary Trauma (Vicarious Trauma, Compassion, Fatigue, …)....................................................................................................... 12-8 Symptoms of Secondary Trauma ..................................................................... 12-8 Assessing the Possibility of Re-Traumatization or Secondary Trauma ............................................................................................................. 12-9 Awareness of the Effects of Working with Trauma Survivors ........................ 12-9 Issues Unique to Legal Representatives ......................................................... 12-10 Issues Unique to Staff..................................................................................... 12-11 Issues Unique to Interpreters .......................................................................... 12-11 Self-Care: Why It’s Important ........................................................................ 12-12 Self-Care: Prevention of Secondary Trauma .................................................. 12-13

PART ONE: UNDERSTANDING AND RECOGNIZING TRAUMA IN YOUR CLIENT § 12.1 Experiencing Trauma Disasters and violence can cause persons to experience psychological trauma. Living through or witnessing natural disasters such as earthquakes, wildfires, tornadoes, floods, hurricanes, and heat waves can potentially cause psychological trauma. Even more powerful is experiencing or witnessing human violence, such as war, rape, torture, and human trafficking. Because human-induced trauma implies intentionality, many clinicians believe the trauma caused by these events is more profound. Human-induced trauma is divisive and can produce feelings of shame or blame; thus leaving the trauma victims feeling isolated. In contrast, natural disasters are viewed as beyond the control of any human, and thus unify communities.

1

Please note that none of the authors of this manual are trained psychologists or therapists. We base this chapter of the manual on our work with psychologists and therapists and some training we have had in these concepts, but do not present ourselves as experts in this field.

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Psychological trauma emanates from experiencing an act or event which is outside the norm and which is emotionally painful, distressful, or shocking. This experience creates a psychological wound that is difficult to heal. The impact on someone’s physiological, psychosocial and family systems can be devastating. Post-Traumatic Stress Disorder (PTSD) is one of the psychological diagnoses of trauma. The Diagnostic Manual published by the American Psychiatric Association states that PTSD may occur when “a person [has] experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of others; and the person’s response involved intense fear, helplessness or horror.” Survivors of traumatic events can experience various phases of psychological trauma, including an intrusive phase and a numbing or avoidance phase. The survivor may alternate between the phases or may experience first one and then the other phase in sequence. The length of time the survivor remains in one phase is individual and depends on whether the survivor has access to appropriate treatment. While in the various phases of psychological trauma, the survivor will exhibit some common symptoms. Recognizing these symptoms can assist you in providing better services to your client, as well as avoiding or minimizing re-traumatization of your client.

§ 12.2 Intrusive Phase and Symptoms While in the intrusive phase, the survivor will frequently and sometimes unexpectedly reexperience or re-live the traumatic event through thoughts, memories and flashbacks that are triggered by sights, smells or sounds connected with the traumatic event. A room with a particular type of lighting, or the smell of cologne or food, or the tenor of a voice may transport the survivor back into the most terrifying or horrific moments of her trafficking experience. She may experience nightmares in which she re-lives the events and her feelings of terror and entrapment. She will be extremely sensitive and on guard, and may easily startle. You may be working with your client and notice that she cries easily, or she is restless and cannot sit still, or she keeps looking over her shoulder at the door, or she jumps at little noises. These behaviors can range in degree from mild to severe. Example: Becky was brought to the United States through false promises. On arriving she was held hostage for several weeks in a container, and repeatedly raped by her trafficker and his friends. After several weeks she was told that she would need to work as a prostitute for her trafficker. He kept her earnings saying she owed him a debt for bringing her to the United States. Eventually, she was released and allowed to live in hotel rooms. Her trafficker moved her from place to place, and he threatened to harm her family if she tried to escape. When Becky came to interviews with her attorney, she would fidget in her chair and then get up and pace the room. She said she felt as if she were back in the container.

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Example: When the prosecutor brought out a box of items, Denali’s eyes began to widen. He told her, “Now, we just want you to identify some of these items that we took from your employer’s house.” As he pulled out the first item, Denali transformed into a wild woman. She jumped out of the chair, ran over to the knife, and began to hysterically talk about how her employer used to use the knife handle to beat her in the head. Sobbing, we all watched in shock while Denali began to mime the movements of beating on her head with the knife over and over and over again.

Being aware of these symptoms and knowing they are connected to your client’s psychological trauma will help you seek appropriate resources for your client. It will also help you adjust your work to try to minimize re-traumatizing your client. In the next section we will cover some techniques and examples of ways to minimize re-traumatizing your client. When your client is in this phase of trauma, it is important for you to set and maintain boundaries. If you are clear about your role as her legal counselor, you will be less tempted to try to also be her counselor and case manager. She may need you to listen because she trusts you, and she may seek your help in a crisis with a need such as housing. In these situations, you can call on the members of your team whose role it is to address these needs. From experience, if you try to take on too many roles, you will burn out or resent your client. Resorting to the services of the team will benefit you and your client.

§ 12.3 Numbing or Avoidance Phase and Symptoms The intrusive stage of psychological trauma is generally easier to recognize and understand than the numbing or avoidance phase. When the survivor is in the numbing or avoidance phase of trauma, she may appear distant, unemotional, and unfeeling. In this phase, the survivor’s mind is protecting itself from the vivid memories and overwhelming emotions caused by the traumatic event. To an outside observer, it may feel as if the survivor is speaking of a third person when she recounts her trafficking experiences. She will not cry or show any emotion, as if she is completely detached. It may appear like she is lying or inventing the facts, because she shows no emotion when describing even horrific torture. Example: When asked questions about her horrific experience being forced into prostitution, Ju-young would speak with a flat voice and show zero emotion. She would not make eye contact and many of her answers were single-words without any explanation or detail. “How many men were you forced to have sex with in a day?” “About 35.” “That’s a lot. Was that difficult for you?” “Yes.” “Did you want to leave the situation?” “Yes.” It was as if she had swallowed all of her feelings of pain, anger, anxiety, and fear.

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In Denali’s example, it very likely that she is in this phase of psychological trauma and can be very fragile. Your client in this stage may have difficulty testifying, may avoid appointments that make him or her recount the details of the traumatic events, or may become vulnerable to depression, illness and in some cases thoughts of suicide.

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You may find it easier or more frustrating to work with someone who is so detached. The difficulty is to avoid doubting or disbelieving her. If you register your doubt, she may shut down. Trafficking and trauma survivors carefully assess those to whom they relate their story, because they are often fearful the person will not believe them, will judge them, or will not be able to handle hearing the details.

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In the numbing or avoidance phase, your client may also avoid appointments that require them to talk about the traumatic event, avoid answering questions directly and instead talk around the question or change the subject, and relate events cryptically without any emotion. Example: Miguel often would sit back in his chair and cross his arms while speaking. Any specific questions about harm he suffered while being forced to work long hours without breaks for his traffickers were deflected either with short answers or with answers that had nothing to do with the question. He seemed distant and would focus on the opposite wall when talking. It took repeated questions, phrasing the questions in different ways, and explaining the purpose of the questions to get any specifics from Miguel. Outside of these interviews he was friendly and engaging, but the interviews became a painful process which required much patience. As noted in the example above, you may need to repeatedly explain the process and purpose of the questions to your client. You may need to call your client’s attention to the fact that he is not answering your questions and changing the subject. It may be helpful to reassure your client that you know this subject is a difficult one to cover, and that you do believe him. By monitoring your own reactions to his manner, you can avoid sending subconscious messages or making judgments about the credibility of his statements.

§ 12.4 Memory and Testimony Survivors of trauma can frequently experience changes in memory. Trauma can cause someone to forget a major event, as well as fail to retain the information in the first place. It is referred to as dissociative amnesia, and can mean that survivors of trauma are not only unable to remember details of their trafficking experience, but also such innocuous information as their children’s birth dates or names of cities where they resided. This memory loss or alteration has been proven and is well-documented.2 Memory loss can affect the extent of information obtained in an interview. Major events may not be disclosed initially if at all. Your client may remember some detail in one interview and have no recollection in another interview. This memory loss can impact your client’s testimony in law enforcement interviews and court hearings. It will be important to explain these

2

See, Bessel A. van der Kolk, “Trauma and Memory,” In: B.A. van der Kolk, A. McFarlane, & L. Weisaeth, eds. (1996). Traumatic Stress: The effects of overwhelming experience on mind, body, and society. New York: Guilford.

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memory losses or failure to retain information so that the officials do not doubt the credibility of your client.

PART TWO: MINIMIZING RE-TRAUMATIZATION IN YOUR CLIENT § 12.5 During the Interview There are a number of strategies that can be help to minimize re-traumatizing your client during her interview. For example, you may want to meet with her in a less formal setting if the lighting or desks trigger flashbacks. Bright lights and loud noises can be stressful, so reducing these if possible may reduce the stress levels for your client. Giving your client some control over the interview process by telling her you can take a break whenever she wants or you can end the interview and finish it another day if she wants will reduce the feeling of powerlessness that she may connect to her time with her trafficker. You can also preface questions with reasons for asking the questions. Provide your client with as much information as possible so she can make choices. Acknowledging that the information your client has to relate is difficult to talk about is important. Staying focused on the details your client is relating will confirm that what she is saying is important. If your client expresses that you might not believe her or believe that she was stupid to find herself in this situation, remind her that she has been brave in coming to talk with you about it. Sometimes having snacks and water available during the interview provides a welcome excuse to break. Food and drink will also bring someone out of their head and into their body. It can also provide a feeling of comfort. If possible, choose foods that would be familiar and comforting to your client. Minimize the number of people involved in the interview if possible. The more interviewers (including interpreters) the more the interview may feel overwhelming and intimidating to your client. If your client is female, it might make sense to have at least one female in the interview—whether legal representative or interpreter. If your client is transgendered, you may want to ask your client if they have preferences in who they would prefer to work with, especially if their case involves sexual assault. It may also help to know the gender and ages of the traffickers in order to avoid recreating a power dynamic similar to the traffickers.

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Survivors often will tend to relate information in a circular rather than linear fashion. Thus, events may seem jumbled to an interviewer expecting a chronological account. At least initially you may need to let your client relate events and details in the order she remembers them, and then later place the events in chronological order. If you try to force your client to relate the story in chronological order, she may struggle even more with her memory. Sometimes it is also helpful to ask clients questions based on dates and events that frame their reference in life, such as what season it was, holidays, birthdays of children, etc.

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In some cases of young women, it may be difficult to speak of sexual exploitation even in front of a woman if the woman is elderly. Because of respect, the young girl may feel she cannot be explicit about her exploitation. Thus, the makeup of your interviewing team may be important. However, be careful of making assumptions. It might be possible to speak with your client’s case manager or counselor to determine what would be easier for your client. Otherwise, you might want to be observant, and adjust where possible. Example: Aaron shifted in the chair uncomfortably. To be honest with you, I would rather talk with a man about when I was raped. I was surprised. Although he had recently changed his gender identity from a female to a male, I had assumed that because the rape occurred when he was still identified as a woman, he would be more comfortable discussing his rape with a woman. Aaron continued, please don’t be offended. Not everyone feels the way I do, I just think that will be easier for me. I quickly made plans with Aaron to see if he would be more comfortable talking to my male colleague instead.

§ 12.6 Before and after Interviews Before an interview, it is helpful to prepare as much as possible. If there are police reports or brief case management intake sheets, you can become familiar with what your client has already told others and thus avoid making her repeat all the details again. Your client’s case manager may be able to give you other information such as your client’s interests, her stressors, and her nickname or what name she prefers to be called. When first meeting with your client, it is helpful to take some time to explain your role and the purpose of your involvement. By providing her information about your office and the role of people on your team (e.g., interpreter, law student, legal representative, etc.), she has a context for the persons involved in her immigration case. Beginning an interview slowly by seeking background information such as date and place of birth and family information and then working slowly up to the more difficult or painful information is generally less stressful than immediately asking your client to talk about the trafficking. If you have more than one appointment scheduled, you can advise your client in advance that she will need to talk about the details of her trafficking at the next appointment. This will give her time to mentally prepare. You can also give her reasons for why you need to ask specific questions. Although it may not make the recounting easier, it will provide a context for the questions. Before an interview where you will be asking your client to recount details of her trafficking or where law enforcement may be asking detailed questions, you may want to contact your client’s counselor or case manager to let her know. The counselor or case manager can check in with your client before and after the interview to make sure she is processing the experience and not suffering from anxiety or flashbacks as a result of talking about her trafficking.

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§ 12.7 Preparing for Law Enforcement Interviews If your client has been identified by a community based organization or a Good Samaritan, it is possible to take time to prepare your client for her law enforcement interview. Initially, you will want to explain that she ultimately has the power to decide whether to report her trafficking to law enforcement. Although certain types of immigration relief such as T and U visas require cooperation with law enforcement, she nevertheless has a choice in the matter. If your client decides to report her trafficking and to participate in an interview with law enforcement, you can explain to your client the purpose of the interview and the general way these interviews are conducted. By letting your client know a little about the process and the officer(s) or agent(s) interviewing her, she will experience less uncertainty and anxiety. If at all possible, you will want to accompany her in the interview, so that she has a familiar face and an advocate present. The interview should take place in a familiar setting such as your office. If the law enforcement officers/agents who are part of your trafficking team have standard practices, such as wearing street clothes to the interview, you can let your client know this information. The law enforcement officers/agents from your trafficking team may already understand the importance of taking breaks, of allowing your client to speak to you privately if needed, and of explaining their role and purpose, but if they forget you may need to respectfully remind them. If the officer/agent needs to meet again with your client, you will want to clarify the purpose of the follow-up interview for you and your client. Debriefing with your client after the law enforcement interview is also helpful. It will allow you to answer questions your client had that she did not feel comfortable raising in the interview or confusions she experienced from questions asked of her during the interview. The interview may have triggered memories she forgot to relate to you that she feels are important. Again, taking time after the interview to speak allows your client to return to present time and to know that she is now in a safe place.

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In ending the interview, it may be helpful to ask resourcing questions, which encourage and allow the client to remember that they are strong, resilient, survivors. After you complete your interview, it is helpful to spend some time in small talk with your client. Giving her a chance to come back to the present and to feel safe again will help her minimize the effects of remembering painful events. It can be dangerous for your client to leave your office still re-living her trauma. She could have an accident, spiral into depression, or consider suicide. As much as possible you will want to give her time, so offering her water or a soda to drink or a magazine to read or just talking about her current interests and activities can help. Also avoid ending the interview abruptly, as your client may have unanswered questions and fears that may trigger massive anxiety, insomnia, and other problems.

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PART THREE: UNDERSTANDING AND RECOGNIZING SECONDARY TRAUMA IN YOURSELF, YOUR STAFF AND YOUR INTERPRETERS

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§ 12.8 Concepts of Secondary Trauma (Vicarious Trauma, Compassion, Fatigue, …) Service providers who work with trauma survivors will frequently be exposed to accounts of violence and terror. Survivors will relate events that seem unfathomable and surreal. These accounts will call into question any sense of normalcy and humanity that the service provider previously held. Exposure to trauma via the survivor can create what is variously termed “secondary trauma,” “vicarious trauma,” “compassion fatigue,” “compassion stress,” “transference,” among other terms. Professions such as emergency medical technicians, mental health providers and more recently war correspondents have recognized their susceptibility to secondary trauma. Legal representatives are less likely to consider secondary trauma to be one of the results of working closely with trauma survivors. Persons who pursue a legal career may have chosen this work because they are more comfortable with logic than with emotions. The study of law has been primarily Socratic and has emphasized logic and analysis. Yet at least one informal study has shown that lawyers are at least as likely if not more likely to suffer from secondary trauma as mental health providers.3 Understanding secondary trauma and recognizing it will mean that you will be able to minimize its impact on your representation of your client and your ability to work long-term with survivors of trauma. If secondary trauma is ignored, it can affect your ability to effectively represent your client because you may become too emotionally involved or too withdrawn from your client. Your client will sense your trauma whether you recognize it or not. If the accounts from multiple trafficking survivors become too difficult to hear, you may unknowingly give your clients signals not to disclose all of the details of their trafficking. If you become too involved in your client’s case, you may begin to resent your client. Over time, you may decide not to represent trafficking survivors because the toll on you is too great. Thus, for purposes of zealous advocacy and for your ability to stay in the trenches, it is important to address the concepts of secondary trauma and self-care techniques.

§ 12.9 Symptoms of Secondary Trauma Secondary trauma is not general stress or burnout. While burnout and stress may cause physical and mental ailments and exhaustion, secondary trauma mirrors the symptoms of trauma inducing pain, fear, anger, despair and a sense of loss of control. The service provider can experience nightmares, intrusive thoughts or thoughts of the account that come to mind out of nowhere, as well as numbing and avoidance. Many of these symptoms are less intense compared to the symptoms of the trauma survivor herself, but they are real and should be recognized and addressed.

3

Andrew P. Levin & Scott Greisberg, Vicarious Trauma in Attorneys, 24 Pace L. Rev. 245, 248 (2003).

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Example: Our office had a number of intense cases involving trauma survivors. While I had represented many trauma survivors over the years, these cases included powerful visual images and very graphic narratives of torture. I constantly felt as if I had been hit by a truck. Driving home, I was sitting at a stop light and the images of one client’s experiences flashed in my mind. I found myself having nightmares, and being on edge. Realizing my ability to keep enough distance to unemotionally assess my clients’ cases and ability to meet their burden of proof was impaired, I reached out for assistance. Our office had contact with several psychologists/therapists through the Center for Survivors of Torture who offered to train us on trauma and secondary trauma.

Before beginning to take cases or work on cases involving trauma survivors, you should assess susceptibility to re-traumatization or secondary trauma. If you have yourself survived a traumatic experience, exposure to a client with trauma may re-traumatize you. Repeated exposure to trauma can increase the possibility of experiencing secondary trauma. Also, certain types of cases may have more effect than others. For some, cases involving children have more of an impact. Although this does not mean you cannot or should not take the case, you may want to be extra sensitive to the effects on you of working on the case. You may want to put in place selfcare procedures early, or you may want to work with a colleague on the case so that if you need to step out or away there is someone else who can take over. This type of assessment requires self-honesty. It is better for you and your client to determine your limits on working on these cases in advance. It is not different than assessing potential conflicts of interest. Ultimately it will benefit you, your client and future cases.

§ 12.11 Awareness of the Effects of Working with Trauma Survivors It might not be the first case you handle or the second, but at some point you may notice that after screening a human trafficking survivor you are physically exhausted—as if you ran a marathon. Or you may notice you are becoming impatient with your client’s inability to remember simple details, or you hope that she misses her appointment. It may be that you have made yourself available to your client 24/7 by giving her your cell phone or home phone number, and now you are frustrated when your client keeps calling you. There are many variations on these scenarios, but they should serve as warning signs. Either you are becoming too involved and affected by the accounts you are hearing from your clients, or you are withdrawing and checking out. These are normal reactions and are no reason you should be alarmed or frustrated. The first step is awareness of your reactions. The next step is to put in place self-care techniques. These self-care strategies will be discussed more below. Suffice it to say, it will help to set

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§ 12.10 Assessing the Possibility of Re-Traumatization or Secondary Trauma

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boundaries, to spend time in the present, to treat yourself to comfort items, and to debrief with colleagues. Awareness of your reactions to accounts of trauma should not be relegated to your breaks, although during your down times you may be more conscious of your reactions. Even when you are in the midst of interviewing a trafficking survivor, some part of your brain needs to do periodic assessments of your responses to the account, to the survivor and to the process. Are you physically inching away from the survivor? Are your muscles tightening? Do you feel you are getting a headache? Are you breathing? Is your brain rejecting the information or the mannerism of the survivor, subconsciously stating it can’t be true? Are you flashing back to experiences you had as a child? Your responses may only require a conscious acknowledgement before you proceed with the interview. However, if your reactions are intense, you may need to pause the interview, step out and get a glass of water while you take a brief moment to process. Addressing your reactions timely will prevent you from subconsciously affecting your case/representation of your client and will avoid accumulation of stress and physical discomfort.

§ 12.12 Issues Unique to Legal Representatives Legal representatives, attorneys and paralegals, have specific challenges in regards to secondary trauma. Legal education rarely addresses the psychological aspects of representing a multi-faceted human being with a variety of emotions. Unless we are locked in the law library with a computer and a stack of books, legal representation requires interaction with human beings. This fact intensifies when our client is a survivor of trauma. The expected or understandable emotions of frustration, anger, desperation, confusion, fear and helplessness of litigants shifts to more powerful and less common symptoms of trauma. Our legal education does little to prepare us for addressing our client’s psychological issues, nor does it allow us to focus at any point on our own reactions. The concept of “client centered” leads us to believe we need to take ourselves out of the picture. What we want and what we feel does not matter, right? How can we be objective if we are acknowledging our emotions? Legal professionals also face a high burn-out rate and vicarious trauma for many reasons. Aside from the fear of looking “weak,” legal professionals tend to peg their success to legal outcomes. These are good questions, and ones that as legal representatives we may struggle with when facing trauma and secondary trauma. Furthermore, the legal profession tends to value legal victories as the main form of success worth celebrating. We cannot always win every legal battle and application. It is helpful to also talk to case managers and understand other ways that your client can be improving their lives beyond a form of legal relief. Example: I was feeling very stressed and upset that CIS had yet to adjudicate my client Lana’s T visa. I submitted the T visa for her a year ago, and she was waiting to reunite

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with her three year old daughter! Then the client’s case manager called me. “Great news! Today Lana learned how to write her name for the first time and now knows how to take the bus on her own.” Lana, who was 65-years old, was illiterate and never drove once in her life. It reminded me of the different ways Lana was still moving ahead in life.

You may also feel divided between obligations to competently and zealously represent your client. On the one hand, you do not want to re-traumatize your client and you will need to address the issue of trauma in order to prepare the case and your client for interviews and testimony. On the other hand, you need to remain objective and detached enough to assess the legal merits of the case and to ensure all deadlines are met. It is a balancing act, and neither of these obligations should be neglected.

§ 12.13 Issues Unique to Staff With respect to your staff, they may or may not have direct contact with the clients. If your staff works closely with trauma clients or with the cases, they may also be susceptible to retraumatization (if they have experienced a traumatic event in their own lives) or secondary trauma. Support staff, including the receptionist, legal assistants and volunteers should be included in training on trauma and secondary trauma. Clients may relate feelings, nightmares, flashbacks and fears more readily to your staff than to you. Your staff may be called upon to provide initial screening, or referrals if needed. To the extent possible, it may help to find ways to insulate your staff or to debrief periodically, so that your staff does not have to hold onto the emotions and information bestowed on them by your clients. Remember that law clerks, interns, and volunteers may be less used to hearing traumatic events and can be negatively impacted relatively quickly, and require the same training and debriefing.

§ 12.14 Issues Unique to Interpreters Interpreters perform a unique service in human trafficking cases. They are the linguistic and cultural bridge between the survivor and you. This role can be exhausting under normal circumstances, but in the case of a trauma survivor the task can be daunting. Interpreters are not immune from re-traumatization or secondary trauma. In fact the trauma experience may be even more powerful for the interpreter than the legal representative.

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The legal field and law schools are beginning to address these issues. For example, Santa Clara University has offered a course titled “Health Law: Trauma and Vicarious Trauma.” Other law schools and clinics have invited psychologists and therapists from torture survivor centers and professional associations to train law students on working with survivors of trauma. Law offices, state and local bar associations, and legal services agencies have begun to train staff and members about trauma and secondary trauma.

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Trained interpreters will interpret in the first person—”I was raped;” “I was trapped and tortured when I tried to escape;” “I was forced to work 18 hour days and eat scraps of food from the garbage can.” The power of words to create vivid images increases when we speak in the first person. Thus, your interpreters will need breaks and need support during the process of interpreting for a human trafficking survivor.

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PART FOUR: SELF-CARE TECHNIQUES While the impact of working on behalf of trafficking survivors is undeniable and largely, inevitable, there are ways of minimizing the negative impact and emphasizing the huge rewards that accompany vigorous advocacy on behalf of survivors of modern day slavery. While we are not experts on self-care techniques, there are professionals who have expert advice on such methods. Dr. Yael Fischman, Ph.D., was generous enough to allow us to provide some of these suggestions in this handbook.4 The study of human induced trauma such as that generated by wars, forced displacement, torture, human trafficking, sexual assault, or domestic violence corroborates that those in secondary contact with the victim’s suffering are themselves vulnerable to developing symptoms of trauma. So, as service providers, we have an ethical responsibility to monitor ourselves. If we find that we are experiencing either burnout or symptoms of trauma, we need to address them. If we ignore them, we minimize our ability to provide adequate services to our agency’s clients. Ideally, we need to implement preventive measures and find ways to take care of ourselves before these symptoms emerge.

§ 12.15 Self-Care: Why It’s Important It is essential to be aware of options for self-care for personal, professional and ethical considerations. We must take care of ourselves in order to function adequately in our professional capacity. As professionals, we have an ethical responsibility to “do no harm.” However, a traumatized professional may develop problems such as inhibited listening, lack of concentration, and difficulty maintaining appropriate boundaries with clients. Traumatized professionals may also show counterproductive responses ranging from excessive distancing to over-identifying with the client. Lack of self-care when working very frequently or for long periods of time with severely traumatized individuals may lead to physical illness, emotional distress, absenteeism, or lowered productivity. Eventually these problems may diminish the ability to help survivors of severe trauma, thus depriving an underserved population from much needed services.

4

This section was developed by Yael Fischman, Ph.D. for training purposes. Please do not copy or distribute without previous agreement with the author.

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§ 12.16 Self-Care: Prevention of Secondary Trauma Many of the events that you will hear about in your work with trauma may elicit very strong feelings, such as shock, anger, horror, sadness, fear, grief. Please remember that these feelings are normal. Most people in your situation would feel the same way. Read the list below for general suggestions about self-care. Follow that by developing personal strategies for selfcare that are appropriate for your specific needs and possibilities. Try to become aware of your limits and to respect them. As difficult as this is, try to schedule a short time for self-care in your daily routine

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Strive to maintain a balance between your personal and professional life, between work and leisure time.

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Take care of your physical self through proper diet, exercise and enough sleep.

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Try to remember to use humor and laughter in your everyday life as much as possible.

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Do not expect to get immediate support or understanding from the important people in your lives. It may take them some time to acknowledge the pain involved in your work. Help them to gradually understand and develop the ability to process the information that you choose or can share with them.

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Try to establish meaningful connections with peers. Seek out experienced colleagues. If you don’t have a supportive peer group, try to find a safe forum in which you can discuss your reactions to your agency’s clients.

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Get supervision from someone that understands the dynamics of work with traumatized clients, and/or try to organize discussion groups with peers.

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Try to clarify the source of your personal motivation to provide services to traumatized individuals.

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Get involved in personal counseling if current personal issues or unresolved traumatic experiences from the past are intruding in your work.

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Be aware of the need to keep clear boundaries in your relationship with your agency’s clients.

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It helps if you are creative in your search for preventive measures, so that you discover and implement those that fit your own individual needs. The list below includes some general recommendations for self-care that you can modify or use as an inspiration to develop your own prescription for self-care.

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Explore strategies that will help you develop spiritual facets or expressions of your being, as a way to maintain hope and faith when confronted with intense pain.

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You may feel angry, burnt out or hopeless as a result of your continued exposure to the helplessness of traumatized victims. If that is the case, consider joining local organizations that focus on preventing these crimes or acts of cruelty. These might provide a very positive channel to your anger and help counteract your feelings of hopelessness.

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When overburdened by the pain of secondary trauma, try to quiet your mind and gain perspective with time out. Spend time in nature, engage in outdoor activities, try quiet contemplation, or call a friend that will listen to you.

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Prevent information overload. Be selective about how much and what kind of information you allow into your system. Don’t allow negative information to occupy space in your mind unless it is absolutely essential. Avoid disturbing scenes in newspapers, movies or TV to avoid trauma overload. If you watch TV, try to focus on programs that are entertaining or uplifting.

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Learn to identify changes in your mood. Are you feeling angry very frequently? Do you frequently feel that you are about to cry? These may be signs of secondary trauma; do not ignore them. Try to make time for fun activities, relaxation, outings or conversations with friends. Also, practice observing your mood changes. The more you observe these changes, the more control you will eventually acquire over your moods.

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Learn to identify changes in your behavior. Do you get frustrated very frequently? Are you becoming impatient with your family, friends, and co-workers? Have you increased your alcohol intake? Are you fighting a lot with your spouse or significant other? Do you have a desire to attack them physically or feel that you cannot control your temper when you are around them? These also might be signs of secondary trauma. They may indicate that you need to take time out, get support from friends, and talk to a counselor.

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If you cannot find a counselor to work with, talk about your feelings and concerns with someone that has experienced similar symptoms, or try to reach out to your support system, spiritual advisor, or someone that can provide objective feedback.

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Give yourself some time to calm down after each interview with a client. On many occasions you don’t know how strongly you have been impacted by such a meeting until later. Develop personal rituals that help you contain and enclose the information after each interview, as if you would place all the information inside a closed drawer.

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Find ways to disengage from traumatic thoughts. Get involved in activities that will help you detach for a while. Explore strategies that can help you disconnect when you need to, and share these with co-workers.

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Build healing rituals into your life. Some examples include exercise, martial arts, acupuncture, or other types of bodywork. A number of people report that it helps them to devote time to painting, music or other art expressions. For others it is helpful to interact with children, play with pets, or meditate or immerse themselves in spiritual practices. Try to identify healing rituals that might work for you, and then schedule them into your calendar, even if your available time is limited.

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Awareness: Being attuned to one’s needs, limits, emotions and resources.

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Balance: Among work, play, and rest. Inner balance allows attention to all aspects of the self.

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Connection: To oneself, others and to a transcending spiritual force. The purpose of connecting to others is to offset isolation. Communication with others breaks the silence of unacknowledged pain. The purpose of connecting to self and to some transcending spiritual force is to increase validation and hope.

Remember, it is difficult to care for others without prioritizing care for yourself. You will also be of greatest value to the fight against trafficking and violence if you can learn how to prolong your ability to work in this field with these self-care techniques.

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Psychologists Saakivtne and Pearlman (1990) describe their ABCs of self-care, in which they address the need for awareness, balance and connection. These principles may also help in planning for self-care.

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CHAPTER 13 LEGISLATIVE ADVOCACY

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This chapter includes: § 13.1

Lessons Learned Regarding Crafting Anti-Trafficking Legislation................. 13-1

§ 13.1 Lessons Learned Regarding Crafting Anti-Trafficking Legislation

The federal anti-trafficking law was used as a starting point but the coalition wanted to strengthen provisions to add protection and services for survivors, such as increasing the statutory period during which survivors could seek civil damages against traffickers and establishing a human trafficking case manager privilege akin to a domestic violence or sexual assault case manager’s privileged relationship with a survivor of domestic violence or sexual assault. One of the first steps in the legislative process that we took was to reach out to possible resources to secure pro bono legislative counsel. We were able to connect with invaluable staff and students at Boalt Law School’s Human Rights Center and Stanford Law School and they served as CAI’s legislative counsel throughout the process. One of their first tasks was to research existing legislation that was relevant to the statewide law that we envisioned. The existing legislation that we wanted to examine included the federal anti-trafficking law, the VTVPA, federal and state laws that touched upon the various aspects of the issue, such as criminal penalties for related or similar criminal activity, civil statutes of limitation for seeking damages and compensation, and others. We also wanted to research and review the framework for laws and regulations that provided protection and services to victims of other crimes, such as sexual assault, domestic violence, and child abuse. Concurrently, CAI conducted outreach and advocacy with stakeholders throughout the state. Legislators, local law enforcement, service providers, and survivors of international and 13-1

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In 2004, the Asian Pacific Islander Legal Outreach, Lawyers Committee for Civil Rights of the San Francisco Bay Area, and the Coalition Against Slavery and Trafficking (CAST) formed a coalition named the California Anti-trafficking Initiative (CAI) to spearhead an antitrafficking law for California. Based on several years of practice in the field of human trafficking, each of us having represented dozens of human trafficking survivors and worked with human trafficking case managers and other service providers, the members of CAI reached a consensus goal that we wanted to create a law that would be focused on the holistic needs of the trafficking survivor. We knew that criminal provisions might need to be included in order to encourage local law enforcement and prosecutors to use the law and to increase their investment in the discovery and prosecution of trafficking cases in-state, but our eyes would be fixed on the primary objective: to increase the protections and services desperately needed by survivors.

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domestic human trafficking were among the stakeholders with whom we made contact. We knew that with the limited staff and financial resources that we had, we would not be able to reach every single stakeholder, but we wanted to try and reach a solid cross-section of the individuals and groups that could provide experience-based insight into the objectives that we were attempting to attain through this new law. We also believed it was important to outreach to parties that we knew were not allies and/or were not in support of the same objectives. Again, our overarching goal was to craft legislation that would do what it was intended to do and to minimize negative ripple effects that we did not intend. In other words, we wanted to craft a fine tool that would do the most good on a practical level and not create a sledgehammer that could be misused or misapplied and harm communities or individuals in ways that we could not foresee. We knew that this philosophy might not be a shared one with the legislator or legislators that we needed to get on board with our effort to move our legislation forward. At the same time, the issue of human trafficking was becoming more and more well-known and was considered an issue ripe for high profile action, including legislation. Therefore, a number of legislators were interested in being associated with the issue. Some were not interested in crafting the same type of law that we had in mind and wanted to concentrate on punitive measures and others only wanted to tackle sex trafficking. We understood that human trafficking legislation could be viewed by some legislators as primarily a political opportunity and not a human rights issue that needed to be addressed in a thoughtful way. We did not want to destroy or harm relationships with legislators who might be needed as allies or collaborators in the future, but we knew that we needed to avoid political opportunists. These were just some of the philosophical differences that we had to navigate through this process. Those differences and the politicization of the issue of human trafficking made this step akin to a walk through a minefield of possible political missteps. One major advantage that we had was pre-existing relationships with certain state legislators. These relationships, forged through past collaborative work on domestic violence, sexual assault, and general immigrant rights and civil rights issues, were critical in enabling CAI to move forward. Based on past experience, we knew that these legislators were not politically opportunistic, would be receptive to our objectives and had an interest and commitment to moving this type of legislation forward. Legislative staff in these offices was invaluable in their guidance about which senators and assemblypersons to approach and advice about future procedural and political hurdles that we would have to overcome along the way. Eventually, the California Trafficking Victims’ Protection Act, AB22, sponsored by Assemblyperson Sally Lieber and others, was signed into law by then-Governor Schwarzenegger on September 21, 2005. Together with the related bill SB 180, sponsored by Senator Sheila Kuehl, these two laws criminalized trafficking as a felony, established a privileged relationship between a human trafficking-trained counselor and survivor to better ensure that there would be protection for the communication between survivor and counselor, provided for civil remedies that would allow survivors to seek and receive compensation for damages caused by their traffickers, and created a statewide task force to analyze, evaluate, and then make recommendations about ways to improve the statewide response to human trafficking.

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While the final product was not the “ideal” law that we as advocates had wanted and was ultimately the product of compromise and negotiation, it is still the most comprehensive survivorfocused state law to be enacted to date to combat human trafficking. Because of the everevolving nature of trafficking in persons and the advancements in understanding and addressing it, legislation can always be improved upon to better support and aid survivors and incentivize law enforcement to fully prosecute traffickers and protect survivors. But the lessons learned from the AB 22 legislative process are lessons that we wanted to share with the hope that some of those lessons will help inform advocates who must deal with the proliferation of newly enacted and proposed laws that purport to benefit survivors of trafficking among other objectives.

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Those lessons can be crystallized into three main principles: 1.

Don’t Legislate in a Silo

This ripple effect is also the reason that stakeholders should always be involved in the effort. There may be nuances to the issue that you have not yet had a chance to discover or understand but there may be information-holders who are present and eager to share this critical information. Fundamentally, including the individuals and groups who are already involved with the issue and can help inform your effort will be both a time-saving exercise as well as one that lends your credibility, depth of understanding and knowledge, and potentially, needed political clout to your effort. Alternatively, if you are not spearheading the effort but there is an on-going legislative effort that is relevant to your practice or advocacy area, we strongly encourage you to initiate contact with the individuals or groups in charge. As an interested party, as a stakeholder, you may not always be recognized as such or invited to the table but that should not dissuade you from making the attempt to join the discussion to share your insight, your experience, and your ideas. Discussion of how to not only write a law, but how it will be implemented, is just as important. It is important not to write laws without consulting and discussing with the people who will be in charge of implementation and enforcement. Don’t assume that you will be able to clarify every last aspect of implementation through the statute—you will need good allies and

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This first principle is crucial. If and when you choose to participate in a legislative effort or policy effort, it is critical that you understand that no single law or policy stands alone. In other words, there is an inevitable ripple effect that will occur. In the best case scenario, the ripple does no harm. But in the worst case scenario, the ripples are far-reaching and do an enormous amount of damage. Put another way, you can think about your legislation or policy as a powerful new drug designed specifically to treat an identified illness or disease. But before one would take a new drug, one would want to know what medications the person was currently taking, what side effects are possible with those medications, what side effects are likely with the new drug, and what drug interactions could arise that you need to consider? Therefore, you need to spend the energy and the time to do your research on existing laws, regulations, common practices, and other pre-existing parameters or frameworks that are already in place to address the problem that your new legislation is supposed to resolve. Understanding that there are farreaching consequences, both intended and unintended, of any new piece of legislation is important.

protocols to see through the implementation, follow-up, and hopefully future improvements on the law.

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For these reasons, as an advocate for trafficking survivors, do not be swayed and mistaken by the fact that sole focus on criminalization will solve the problem. Remember that the victims’ rights should be included in the conversation, and there should never be the automatic assumption that sole criminalization of an issue will be to the benefit of your client. In addition to advocacy for more resources, think about specific legal fixes that your client would benefit from a systematic, victim-centered approach. Remind legislators of the original three Ps of the Trafficking Victims Protection Act—prosecution, prevention, and protection, and of the fourth P recently endorsed by the U.S. Department of State—partnership. Remember to ask the survivors and the people who work with them directly about their thoughts on legislative proposals, and encourage them to make sure that the survivor stories and voices are heard and incorporated into policy, rather than being treated as single, one-off cases. The 2012 passage of a new law in California called the Californians Against Sexual Exploitation Act (CASE Act), which effectively modifies the existing California law against human trafficking, is one example of how the best of intentions can still result in an unintended negative impact on the very community that the legislation was intended to aid. A group of human trafficking attorneys, including one co-author of AB 22 and one co-author of this manual, published an opinion piece that succinctly explained the unintended consequences of the CASE Act, known as Proposition 35 on the November 2012 state ballot: First, Prop 35 requires prosecuted traffickers to pay up to $1.5 million dollars in fines to unidentified governmental agencies and non-governmental service providers, in addition to existing criminal fines. Yet the law does not set aside any of this money for the actual victims of trafficking, whether as restitution in a criminal case or damages in a civil action. If all human traffickers were multi-millionaires, this requirement would be of little concern. But most are not. The mandatory fine will therefore deplete or eliminate trafficker’s assets that under current law go directly to the victims of forced labor. Prop 35, in its laudable determination to ensure that traffickers do not profit from their crimes, has the perverse effect of making traffickers “judgment proof” and diverting money away from trafficking survivors. Second, Prop 35 revises the penal code to create a hierarchy of penalties for traffickingrelated offenses, increasing sentences for sexual exploitation to levels drastically higher than those for labor trafficking. California’s existing law was carefully designed to provide a range of potential sentences for convicted traffickers, giving prosecutors and courts the discretion to determine sentencing enhancements based on the facts of each case, which can range from situations of physical bondage to far more subtle forms of coercion. Crucially, existing law was designed to ensure that all forms of trafficking are viewed and punished with equal seriousness, no matter where or in what industries the victims are forced to work. Prop 35 obliterates this carefully calibrated system, replacing the

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considered judgment of the legislature and advocates who work with survivors with a sentencing regime that prioritizes some forms of trafficking over others. This is a result that the drafters of California’s anti-trafficking laws sought to avoid. Again, the supporters of Prop 35 cannot be faulted for their desire to see sex traffickers punished severely for their crimes, but the creation of an arbitrary sentencing hierarchy denigrates the experience of victims of forced labor who toil in sweatshops and fields instead of in brothels and on the streets.

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Finally, by conflating sexual exploitation with human trafficking, Prop 35 misconstrues both types of abuse. Certainly, some victims of trafficking are also victims of sexual exploitation, particularly in cases of commercial sex trafficking. But sexual exploitation refers to a broad category of criminal conduct that includes non-commercial sexual assault and abuse. Human trafficking—defined by state law as the deprivation of personal liberty for the purposes of obtaining forced labor or services, including sexual labor—is a distinct phenomenon in the ignoble lineage of slavery, debt bondage and involuntary servitude.

However, compare these efforts to completely overhaul and amend the law in an overarching, yet inadequate way with the efforts to pass AB 1899 in California, which focused on a specific technical fix in the law to assist trafficking survivors. AB 1899, effective January 1, 2013, allows students who obtain T or U status will be eligible for in-state tuition, fee waivers, scholarships and state financial aid—to the same extent as a similarly situated refugee. Prior to the passing of AB 1899, under California state law, students who attended high school in California for three years, graduate and meet certain other criteria qualified for in-state tuition rates and privately-funded scholarships at public colleges and universities. However, T and U recipients were ineligible to pay these rates, or to qualify for a fee waiver for at least a year until they secure lawful permanent residence, a process which can take more than three years. Advocates found that many of their clients and their derivatives were frustrated in the interruption in their education, career goals, and reintegration into society. This law was carefully crafted to be a specific fix in the law, considering it effects on trafficking survivors and other legal areas. It was ultimately written in a concise, tight format, easy implementation, no vague definitions and statutory language, and faced almost no opposition in the California legislature.

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Before the passage of California’s landmark anti-trafficking statute, many trafficking cases could be prosecuted only by invoking a panoply of different laws—labor code violations for non-payment of earned wages, tort claims of false imprisonment and invasion of privacy—that did not, alone or together, accurately recognize human trafficking as a unique crime involving unique harms. This type of clarity matters. Accurately defining different crimes allows us to better identify and remedy the harms suffered by victims, and to fashion just punishments for perpetrators. Prop 35 ignores the specific legal and social dimensions of both sexual exploitation and human trafficking, to the detriment of victims of both.

2.

Find and Mobilize Your Allies; Reach Out and Understand Opposition

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For better or worse, the reality is that legislation and policy creation is a political process. In such a politicized landscape, it will be extremely helpful to locate and engage your allies, some of whom may also be stakeholders. Legislators and policy makers want and need to see that there is support for the proposed law(s) or policy. Consequently, there is power in being able to show that you have more than just a single group or individual on your side. You and your allies need to be prepared to actively advocate for your position via in-person meetings with key legislators or policymakers, telephone calls and letter campaigns, as well as through social media. You should be ready with written and oral comments for any formal hearings—such as legislative hearings or committee meetings—that might take place and that are related to your proposal. In truly contentious legislative or policy battles, being able to bring numbers of supporters together in a showing of support can be the factor that persuades decision makers to take desired action. Just as important as securing allies is reaching out to those who may not agree with your legislation. You need to understand the opposition’s reasons for their stance, even if you cannot agree with them. At a minimum, understanding the opposing positions of other parties helps you look at your work with a critical and different eye, which can be useful in evaluating its strengths and weaknesses. It also gives you insight into possible future arguments, the opposition’s strategy, and gives you an advance opportunity to formulate your response. We are not advocating that you fold opposing ideas into your legislation for appeasement’s sake; but we are saying that listening to those who disagree with you can be a chance to learn and adapt and consequently be more effective in your own advocacy efforts. For example, during the AB 22 process, CAI was mindful that anti-domestic violence advocates—a community that was at times a natural ally to those in the anti-human trafficking movement—had previously expressed concern that the increasing profile of human trafficking as well as persistent misunderstandings about the nature of human trafficking and the needs of survivors could result in a decrease in funding and other resources for domestic violence (DV) and sexual assault survivors. For example, the lack of understanding that trafficked persons have very different housing needs than domestic violence survivors could result in the decision to simply fund “shelters” and not find new sources of support for shelter specific to trafficking survivors. Conflating the two groups would thereby result in a decrease in funding for DV shelters since there would be now an additional group dipping into the same pot of housing funds. Therefore, DV shelters were very vocal in their concern that state support for housing options for trafficked persons not be derived from the same extremely limited funding sources that currently supported DV shelters. By welcoming the DV community’s feedback and addressing their concern directly, we were able to defuse a potentially damaging situation and gain the support of a crucial constituency. In passing AB 1899, advocates gathered and wrote letters to appropriate legislators, policymakers, and the governor. Recipients of U visas were brought to Sacramento to speak directly on the matter, and concrete examples of client cases and the positive impact, low-cost effect of the bill were cited in all examples. The advocates included immigrant advocates,

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domestic violence and sexual assault advocates, women’s groups, workers’ groups, and other non-profits in the entire state of California, representing multiple types of immigrant groups.

3.

Keep Your Eyes on the Prize

The above is a best-case scenario in which potential opponents could become united in a common goal. However, in a funding landscape that is often a zero-sum game with extremely limited resources available but with an overwhelmingly large number of needs and interests, it may not always be the case that you will be able to overcome these hurdles. Decision makers may not be supportive for a whole host of reasons. You may be unable to rally sufficient support for your effort. If these or any number of other obstacles block your path, it does not mean that you should end your efforts. It may mean that you will need to rethink your timeline, your strategy, details of your proposed policy or legislation, and/or whether there is a different method to achieve the goals that you were attempting to achieve through this specific proposal. But keep your eyes fixed on the change that you want to effect because ultimately, it is the change that is the prize that we as advocates are striving for and not legislation as an end in and of itself.

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Prop 35 created many divisions within what would otherwise seemed aligned communities. The official voting guide consisted only of the statements submitted by sex workers, as none of the victim advocates groups submitted statements in a timely fashion. Arguments for and against Prop 35 in accordance to the basic voting guide were therefore shifted and geared ultimately towards a conversation again about overarching attitudes towards sex work and prostitution, and shifted away from trafficking and victim’s rights. Ultimately and unsurprisingly, Prop 35 was passed in California with 81% of the vote. The simplistic message of “harsher penalties for sex offenders” and “save the sexually exploited children” resonated with Californians far more easily than the other nuanced arguments. More than $2 billion dollars were sunk into the effort to pass Prop 35, with virtually no money invested in the opposition. However, immediately afterwards, the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) moved to challenge provisions of this law based on First Amendment grounds on behalf of sexual offenders—another concern by another stakeholder that differed from victims’ rights groups, but which ultimately resulted in a stay of a provision of the law related to disclosures by registered sex offenders for the time being. Some of the fallout from Prop 35 included the late-game opposition by some victims’ advocates groups. Many did not support Prop 35 and had reservations, but were fearful to speak out against it, worrying that opposition would seem like an alignment with sex offenders or supporting prostitution (creating a problem for those who receive government funding and are subject to the prostitution pledge). Given the many provisions of the new law, opposition also came from varied groups that did not necessarily know how to band together to create an effective, unified message of opposition—was the goal to support immigrants? Labor trafficking survivors? Sex workers from liability? First Amendment concerns? The inability to effectively organize earlier and to gain appropriate allies in modifying provisions of Prop 35 led to the passage of Prop 35 in its ultimate form.

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Index of Appendices

Appendix HH Appendix II Appendix JJ Appendix KK

Appendix LL Appendix MM

North Bay Task Force Referral Protocol/Phone Tree South Bay Coalition to End Human Trafficking Protocol Crisis Contact Form: Needs Assessment Parallel Processes Chart Protocol for Survivor Number Assignment Initial Letter to Law Enforcement Sample Preliminary Intake Form A Sample Legal Intake Form Sample Immigration Intake Form Sample Trafficking Questionnaire Sample Attorney-Client Agreement A Sample Attorney-Client Agreement B Sample Joint Representation Disclosure and Consent Form Sample Release of Information Form Sample Media Protocol Sample T Visa Application: Cover Letter A Sample T Visa Application: Cover Letter B Sample T Visa Application: Declaration A Sample T Visa Application: Declaration B Sample T Visa Application: Form I-914 Sample Response to Request for Evidence A Sample Response to Request for Evidence B Sample Notice of Appeal Sample Request for Supervisor Review Sample Motion to Reopen and Reconsider Sample Motion for Administrative Closure of Removal Proceedings Sample Motion to Terminate Removal Proceedings Sample Motion to Recalendar and Terminate Removal Proceedings Sample Letter for CalWorks Sample Letter to Social Services Resources for Various Forms of Immigration Legal Relief Memorandum on Revised EEOC U visa Procedures U.S. Department of Labor U visa Process and Protocols Questions and Answer Sample Civil Complaints for Trafficking Survivors Sample Verdict for Civil Trafficking Case IRS Notice 2012-12 Sample Instructions for Fingerprinting of Family Members at the United States Embassy (English) and Ejemplo Instrucciones Para Obtener Las Huellas Digitales (Spanish) July 21, 2010 USCIS Policy Memorandum on Changes to T and U Nonimmigrant Status and Adjustment of Status Provisions Sample Redacted Motion to Quash

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Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I Appendix J Appendix K Appendix L Appendix M Appendix N Appendix O Appendix P Appendix Q Appendix R Appendix S Appendix T Appendix U Appendix V Appendix W Appendix X Appendix Y Appendix Z Appendix AA Appendix BB Appendix CC Appendix DD Appendix EE Appendix FF Appendix GG

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Appendix NN Appendix OO Appendix PP

Federal Register Regarding T-6 visas Sample Interpreter Confidentiality Agreement Sample Common-Interest Agreement

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PROTOCOL FOR HUMAN TRAFFICKING VICTIM NUMBER ASSIGNMENT SOUTH BAY COALITION TO END HUMAN TRAFFICKING Purpose: In order to completely, accurately, and confidentially track the number of human trafficking victims identified and provided services by the South Bay Coalition to End Human Trafficking (Coalition) and the San Jose Police Department Human Trafficking Task Force (Task Force), the members of both the Coalition and Task Force agree to a system of assigning a unique number to each victim. The number will be referenced in communications between and among partners. It will also provide a mechanism for determining the numbers of victims identified and served while avoiding duplicate reporting. Process: In order for the system to work accurately and effectively, it has been decided that one agency will be designated to assign a unique number to each victim and to maintain the records containing the numbers and initials and year of birth. In order to ensure maximum confidentiality of victims’ personal information, the agency designated to assign numbers and to maintain the records will be a legal service provider. For the present the Katharine & George Alexander Community Law Center (Law Center)’s attorney has been designated as the point person for this task.

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The process for assigning numbers shall be as follows: 1) Each agency which is a member of the Task Force and/or Coalition will contact the Law Center Attorney (Lynette Parker) in the following manner: by FAX [408-288-3581] with a confidential cover sheet, by phone [408-288-7030 ext. 228], or by mail in an envelope addressed to Lynette Parker and marked “CONFIDENTIAL”. 2) Each agency will provide the following information for each person screened/served by that agency for human trafficking, who is willing to be identified as a trafficking victim: initials of person, year of birth, and US citizen or not. [Note: If the agency is also serving family members and wishes to provide the same information for family members as well as relationship to the principal, this reporting is optional.] 3) The Law Center Attorney will manually confirm whether the individual has been assigned a number or not. 4) If the individual has already been assigned a number, the Attorney will call or FAX the member agency with the assigned number. 5) If the individual has not been assigned a number, the Attorney will assign the next available number, record the initials, year of birth, etc. in the log, and will FAX or call the member agency to provide the number assignment. 6) The log will be maintained in a secure location. 7) Once the individual screened has been determined to be a human trafficking victim or not, the agency will re-contact the Law Center Attorney with the assigned number, so that the Attorney can note Yes HT or No HT in the margins.

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8) The records will also be annotated to indicate the date the victim is certified by ORR. 9) The numbers will be recorded sequentially starting with the abbreviated year and then the numbers 0001, 0002, 0003, etc. [Example: For cases reported in 2010, the numbers will run 10 0001, 10 0002, etc. For cases reported in 2011, the numbers will run 11 0001, 11 0002, etc. All cases reported in 2009 or earlier do not have the abbreviated year in front of the number.]

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Use of the information for statistical purposes: 1) The only information that may be used from these records is the unique number, which includes the year the case was reported and assigned a number. The initials will be kept confidential. Year of birth is recorded in order to avoid potential confusion in the rare cases of similar initials. 2) Any member agency may request a count of the number of victims served to date or the number of victims assigned numbers within a specific period of time. It is important, however, that member agencies with reporting requirements ensure that the reports are not overlapping or duplicative with the reports of other member agencies. 3) This numbering log will be kept completely separate from other statistical measurement systems or tools. It may be that other statistical measurement systems refer to the unique number, but those will not have any other feature in common or mechanism of crossreference.

Updated last 01/05/2010 

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March 25, 2010

Officer Jennifer Dotzler San Jose Police Department Vice Unit/Human Trafficking Task Force 201 West Mission Street San Jose, CA 95110 RE: IDENTIFICATION OF HUMAN TRAFFICKING VICTIM Dear Officer Dotzler: Our office is contacting you to let you know we have identified a victim of human trafficking (Client’s name). She is the victim of forced labor and domestic violence in San Jose from 1997 to 2007. She has been out of the trafficker’s home for a couple of years. She is Spanish-speaking from Mexico. Please let our office know when you would like for us to arrange a time for you to interview our client. Thank you.

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Sincerely,

Lynette Parker Clinical Supervising Attorney

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Appendix H-2

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Representing Survivors of Human Trafficking December 2013

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Appendix H-3

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Appendix I-1

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Appendix I-2

ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT CONFIDENTIAL AND PROTECTED BY ATTORNEY-CLIENT PRIVILEGE Trafficking Questionnaire Everything that you tell me during this interview is absolutely confidential and will not be shared by me with anyone outside of my organization without your permission first. I am asking you these questions in order to determine if you are eligible for trafficking-related immigration relief. 1. When, where, and how did you first meet your employer? 2. What did your employer tell you about the job (for example: what did she say she was going to pay you? What did she say she would do to help you in the U.S. and/or in your home country? Where did she say you were going to work? What kind of work did she say you would be doing?) 3. Was there someone who introduced you to your employer? If yes, who was it? How did you meet this person? Did you pay the recruiter any money or did the recruiter get anything for introducing you to your employer? 4. Why did you decide to take the job? When did you decide to take the job? 5. Is there anyone you help support with the money that you make? What is his/her name, age, relationship to you? Where are they right now? 6. Describe how you entered the U.S. Who made the travel arrangements and got the right visas for you to travel? Who paid for the airplane ticket?

Appendices

7. What happened when you arrived in the U.S.? Who picked you up from the airport/bus station/pier/border? 8. Describe your daily life after you arrived in the U.S. What was your schedule during the week? 9. Were you ever able to leave and enter the house by yourself? Did you have freedom to come and go? 10. How did your employer treat you after you had agreed to take the job? Did your employer ever treat you differently? How? 11. Describe any incidences of physical abuse by your employer. Please try and be as detailed as possible, including the date and place.

Appendix J-1

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12. Describe any incidences or pattern of emotional or mental abuse by your employer towards you. Again, try and be as detailed as possible, including date and place and also how you felt.

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13. What were your wages at your job? Did you receive any benefits? Any time off? Is this the same as what you were told before you started working? 14. Describe the differences between what you were told about how your life would be in the U.S. and how it actually was. Were there things that anyone told you about your life in the U.S. that turned out to be false? 15. Describe what happened to make you finally decide to leave. 16. What did you do when you decided to leave? 17. Are you afraid of your employer? Why? What do you think she would do if she found you? Do you think she would try and hurt any of your family members? 18. What would happen if you were deported to your home country? Are you in fear of any harmful consequences to you or anyone you know if you were to be returned to your home country? 19. Were your identification documents or immigration documents in your possession at all times from your home country to your travel and entry into the U.S.? If no, who had them, when, and why? 20. Were threats of deportation or jail or harm against you or any of your loved ones ever made against you? By whom? Why?

22. Anything else that you want to tell me about your situation? 23. Do you have any blood relatives or spouse in the U.S.? Where are they? Do they know where you are and what has happened to you? Are any of them lawfully in the U.S.? If yes, what immigration status does he/she have? Have you contacted them? 24. Where are your family members that are not in the U.S.? Where are they? Do they know where you are and what has happened to you? Have you contacted them?

Appendix J-2

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21. If you had changed your mind once you arrived in the U.S., could you have freely and safely returned to your home country or gone elsewhere? If no, please describe what you think would have happened to you and why you believe that those consequences would have occurred.

Attorney – Client Retainer Agreement

Agreement made [Date, Month, Year], between the Legal Service Provider, (“LSP”), and _________________ (“Client”). I STATEMENT AND SUBJECT OF EMPLOYMENT Client hereby authorizes LSP to represent him/her in the following: the preparation and submission of a T visa application, including an application for employment authorization and representation during law enforcement interviews or meetings that may be related to the T visa application. LSP is authorized to represent Client at all stages of proceedings before the immigration court, if needed. This agreement does not include representation in any other matter(s) or cases(s) arising out of the same or collateral proceedings. II PROVISION OF FREE LEGAL SERVICES LSP shall not charge Client a fee for its services. LSP will keep records of all out-of-pocket costs expended on Client’s behalf. Client hereby assigns to LSP all attorney’s fees and costs which may be awarded as a result of any work performed by LSP.

Appendices

LSP is authorized to associate other attorneys to work with LSP on any matters set forth in this agreement, and is further authorized to make any appropriate financial arrangements to compensate such attorneys for costs or fees, with LSP, not the Client, being responsible for payment of such costs or fees. III FEES AND COSTS All costs, necessary disbursements, reasonable personal and travel expenses incurred LSP for and on behalf of Client shall be without charge to Client so long as Client continues to meet LSP financial eligibility guidelines. IV EMPLOYMENT OF INVESTIGATORS AND EXPERTS LSP, in its discretion and at its own expense, may employ experts and investigators in connection with Client’s representation. All such experts and investigators shall report exclusively to LSP.

Appendix K-1

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V FAVORABLE OUTCOME NOT GUARANTEED

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LSP makes no representation or warranty concerning the successful termination of Client’s case, nor does LSP guarantee that it will obtain compensation or reimbursement for Client for any of costs or other expenses incurred in connection with Client’s representation. All statements of LSP staff counsel and other employees on these matters are statements of opinion only. VI OBLIGATIONS OF CLIENT Client agrees to participate in the above-referenced matter. Client agrees to make himself or herself available to assist LSP in preparing Client’s immigration applications and related applications as well as in responding to communications from the government related to the above-referenced matter. Client agrees to keep in contact with LSP and to update LSP with his or her most current contact information. All travel expenses of Client related to making him or herself available as a witness at trial and/or deposition, if needed, shall be without charge to Client so long as Client continues to meet LSP financial eligibility guidelines. Client agrees to notify LSP immediately if and when Client’s financial status changes so that he or she no longer meets LSP financial eligibility guidelines for free legal services. VII TERMINATION OF SERVICES Client retains the right to terminate LSP’s representation at any time with or without cause. LSP retains the right to terminate this agreement only for non-cooperation of the Client. VIII

This instrument embodies the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than those contained herein. This Agreement is a binding contract and shall supersede all previous communications, representations, and agreements, both verbal and written, between the parties. Executed this _____ day of ______________, at __________________, _____________. Client _________________________________ Executed this _____ day of _________________________, at San Francisco, California. LSP ___________________________________

Appendix K-2

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CONTRACT AS INCLUDING ENTIRE AGREEMENT

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AGREEMENT FOR IMMIGRATION SERVICES Client: _____________________________________________________ Date: _____________________ Statement of Understanding: This Agreement explains the terms of assistance to be provided to you by the Katharine & George Alexander Community Law Center, a project of the Santa Clara University School of Law, hereon referred to as “Law Center”, regarding your immigration case. This agreement also defines your responsibilities as a Law Center client. The Law Center Agrees to Provide the Following Services: 1.

_______________________________________________________________

2.

_______________________________________________________________

3.

_______________________________________________________________

I accept the limited assistance that the Law Center can provide. I understand that the Law Center will only provide the services indicated above. __________ (Client’s Initials)

Appendices

Client’s Responsibilities: 1. Cooperation: We cannot adequately help you with your case without your help. You agree to inform the Law Center if: a. You are unable to attend an appointment b. You move or change address c. You change your home or work telephone number d. You have been unable to acquire the necessary documents e. Your income increases significantly 2. Information: You agree to notify the Law Center of any significant facts which may affect the outcome of your case, such as: a. You get married or divorced b. You have a child c. You are arrested or convicted of any crime d. Anything else that you think may affect your case.

Appendix L-1

3. Expenses: Our legal services are provided free of charge. However, you may have to pay some of the actual costs of your case, such as: a. Any fees charged by the US Citizenship and Immigration Services b. Any long distance telephone charges or fax charges, for your case c. Costs for special mailing of documents, $40.00 flat fee ______ (Client’s Initials) d. Fees for FBI criminal background checks e. Other costs as required and authorized by you in writing

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4. Termination of Legal Representation: The Law Center may withdraw from representation in your case for the following reasons: a. Lack of cooperation by you in your case, including missed appointments b. Failure to provide requested information as discussed above c. Failure to respond to calls or letters sent by the Law Center or failure to communicate in any way with the Law Center d. Hiding information or being untruthful about facts related to your case e. Any other violation of this contract You also have the right to terminate our services, and seek representation elsewhere at any time. However, you must provide the Law Center with written notification of your intention to close your case with the Law Center and provide a notice of substitution of counsel to be filed with the US Citizenship and Immigration Services. Client’s Right to Confidentiality: Information provided by you will be held in the strictest confidence. The Law Center is a teaching facility of Santa Clara University School of Law, and the case will be discussed among the students and supervising attorneys working at the Law Center strictly for educational purposes. No information regarding your case will be available to the Citizenship and Immigration Services (USCIS), other departments of the government, or anyone else, without your written consent to release that information.

____________________________________________ Client’s Signature

________________________ Date

____________________________________________ Law Center Representative Signature

________________________ Date

Katharine & George Alexander Community Law Center, School of Law 1030 The Alameda, San José, California 95126-0450

Appendix L-2

Appendices

I, ____________________________________________, understand my rights and obligations as a client of the Law Center and the rights and obligations of the Law Center within the scope of representation.

Appendices

Phone (408) 288-7030  Fax (408) 288-3581  http://law.scu.edu/kgaclc

Appendix L-3

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Disclosure and Consent to Joint Representation Legal Services Provider (“LSP”) has been retained for the purpose of representing the beneficiary of the immigration benefit (“Beneficiary”) and the family member petitioning for this immigration benefit (“Sponsor”). If the Sponsor is compensating LSP for this representation, it will not interfere with LSP’s independent judgment in this case or with its attorney-client relationship with the Beneficiary.

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At present we are not aware of any potential or actual conflict of interest; however, it is possible that at some future time the Beneficiary’s interests could come into conflict with the interests of the Sponsor. For instance, a conflict of interest could arise if the Beneficiary and/or the Sponsor decide to terminate a marital relationship and a family law matter is initiated by one of the parties. This could result in the Sponsor’s refusal to proceed with the immigration petition process, with the possible result being the Beneficiary’s ineligibility to obtain the sought-after immigration benefit. If the Beneficiary or the Sponsor believes that a conflict of interest arises, you must advise us immediately. If an actual conflict of interest arises during the course of our joint representation, we will notify both the Beneficiary and the Sponsor of such conflict and take appropriate action, which could include withdrawal of our representation of one or both of the parties. Any information you provide will be treated as privileged and confidential as against third parties; however, any communications made during the course of our relationship with the Beneficiary or the Sponsor may not be subject to a claim of attorney-client privilege in a civil proceeding between the Beneficiary and the Sponsor. The Beneficiary should understand and agree that LSP’s legal representation of the Sponsor does not include disclosure to the Beneficiary of confidential Sponsor information, within reasonable lawful limits, that the Sponsor wishes to keep confidential. You may seek the advice of independent counsel regarding this disclosure and consent.

_________________________ Beneficiary

_________________________ Sponsor

____________________________ Date

__________________________ Date

Appendix M-1

Appendices

By signing this form and signing the attorney-client retainer agreement, you acknowledge that you have read and understand this disclosure and consent to LSP’s joint representation of the Beneficiary and the Sponsor.

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CONSENT TO RELEASE CONFIDENTIAL INFORMATION I, ______________________________________________________, the undersigned hereby authorizes the Katharine and George Alexander Community Law Center/Santa Clara University School of Law and its attorneys, law students, and other agents to OBTAIN/RELEASE information and/or to copy any and all records, files, documents, or other information in your possession pertaining to me. The undersigned further requests and authorizes the Katharine and George Alexander Community Law Center/Santa Clara University School of Law and its attorneys, law students, and other agents full and complete access to the followings: ____________ Psychiatric/Medical Records ____________ Educational Information ____________ Legal Status ____________ Results of psychological/vocational tests ____________ Treatment Summary ____________ Pertinent Summary of psychological and/or psychiatric history ____________ All case data ____________ Other: _______________________________________________________ A copy of this authorization may be used in place of the original. I may also revoke this consent at any time by putting my request in writing.

Appendices

Signed in the city of San Jose, CA. On the ______ day, of ________________ of __________. Client’s Name: __________________________________________________________________ Client’s Signature: _______________________________________________________________ Client’s Address: ________________________________________________________________ Client’s Phone Number: __________________________________________________________

Appendix N-1

Witness/Requester’s Name and Contact Information: ___________________________________

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_________________________________ _________________________________ Last Updated on 07/2006

Katharine & George Alexander Community Law Center, School of Law 1030 The Alameda, San José, California 95126-0450 Phone (408) 288-7030  Fax (408) 288-3581  http://law.scu.edu/kgaclc

Appendices

Appendix N-2

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SAMPLE MEDIA PROTOCOL1 Trafficking – Non‐cases Each organization may comment and provide information regarding trafficking generally to media. Legal Service Provider will prepare and publish press statements on behalf of the coalition when appropriate. Typically, this will only occur when there is a trafficking‐ related story for which local press wants background information, comments, etc., and none of the coalition partners are providing services to individuals who may be involved with the story. Statements attributed to staff of coalition organizations must be authorized prior to use in any press statement/release/media advisory published by any of the coalition’s organizations. Cases No organization shall comment or provide any information regarding trafficking clients or cases to media with the limited exceptions noted below. The client shall make all decisions regarding use of media in his/her case and staff directly representing or serving the client shall inform the client about all possible advantages and disadvantages associated with media use. Organizations may provide general trafficking information that is not related to any specific individual client. Exceptions to “no media” policy for client‐related media:  Client wishes to utilize media advocacy and has been fully informed regarding all pros/cons of such advocacy.  Legal Service Provider is providing legal representation to client and this information is a matter of public record. In this situation, LSP may comment regarding the case. LSP shall not provide any information that is not in the public record unless directed otherwise by the client. LSP shall not provide any information regarding social service provision to the client by any organization that is a part of the coalition without obtaining prior permission from the organization(s).  In the event that there is a need related to the legal representation/social service provision to respond to non‐AATC initiated press, AATC will decide on a case‐by‐case basis regarding appropriate response.

1 This

protocol was based upon a similar one that was created by a coalition of service providers in the San Francisco area. The coalition was comprised of legal service providers, social service providers, and shelters.

Appendix O-1

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May 7, 2009

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United States Citizenship and Immigration Services Vermont Service Center Attn: T Visa Unit 75 Lower Weldon Street St. Albans, VT 05479-0001

Re:

Applicant: XXXX,xxxx A (none) I-914 Application for T Nonimmigrant Status

Dear U.S.C.I.S. Officer, The Katharine and George Alexander Community Law Center is filing Form I-914 (Application for T Nonimmigrant Status) on behalf of our client xxxx XXXXX. We request that all information relating to Ms. XXXXX remain confidential because this is a human trafficking case. I. I-914 APPLICATION AND RELATED APPLICATION MATERIALS FOR MS. XXXXX Enclosed please find the following forms and materials:   

II. EVIDENCE IN SUPPORT OF I-914 APPLICATION OF MS. XXXXX We request that Ms. XXXXX’s I-914 Application for Nonimmigrant Status be approved on the following statutory grounds: A. Ms. XXXXX is physically present in the United States on account of trafficking; B. Ms. XXXXX is a victim of a severe form of trafficking in persons;

Appendix P-1

Appendices



G-28, Notice of Entry of Appearance as Attorney or Representative for xxx XXXX, Law Student Volunteer G-28, Notice of Entry of Appearance as Attorney or Representative for Lynette Parker, Supervising Attorney Form I-914 of Xxxx XXXXX and supporting documents o Declaration of Xxxx XXXXX o 3 passport size photos Form I-914A for Xxxx XXXXX and supporting documents o Copy of translated birth certificate o 3 passport size photos

C. Ms. XXXXX would suffer extreme hardship involving unusual and severe harm upon removal; and D. Ms. XXXXX has complied with all reasonable requests for assistance in the investigation and prosecution of acts of trafficking in persons. A. Ms. XXXXX is physically present in the United States on account of trafficking. The statutory definition of “physically present on account of trafficking” includes those who “were subject to severe forms of trafficking in the past and remain present in the United States for reasons directly related to the original trafficking in persons.” 8 C.F.R. § 214.11(g). Severe trafficking includes “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.” 8 C.F.R. § 214.11(f). Ms. XXXXX was trafficked into the United States by xxxx and xxxx XXXX. (See Exhibits 5 and 10.) Ms. XXXXX had not entered the United States prior to being trafficked here. (See Exhibit 5 and I-914 Form). In her detailed declaration, Ms. XXXXX demonstrates that she entered the United States on account of fraud. Ms. XXXXX was lured into coming to the Untied States under false promises, and was subjected to involuntary servitude. Involuntary servitude is considered a severe form of trafficking (See Part B below).

Appendices

Although Ms. XXXXX was able to escape her traffickers before law enforcement was involved, she did not have a clear opportunity to leave the United States pursuant to 8 C.F.R. § 214.11(g)(2). Not only did Ms. XXXXX lack the financial resources to return to XXXX, but her traffickers had taken all of her travel documents. (See Exhibit 5 at 118). Furthermore, Ms. XXXXX is afraid of returning to XXXX because of the threats that her traffickers have made against her. Additionally, Ms. XXXXX’s son, Xxxx , is benefitting from medical care in the United States. (See Exhibit 5 at 133). Since coming to the United States, Xxxx ’s chronic asthma condition has dramatically improved. (See Exhibit 5 at 133). Ms. XXXXX is present in the U.S. as a result of the harm she suffered from being trafficked into the United States. Ms. XXXXX was trafficked into the United States for the purpose of domestic servitude. Ms. XXXXX remains in the U.S. as a direct result of the actions of her traffickers. The traffickers have money, power and connections in XXXX, and Ms. XXXXX believes her traffickers will use their wealth and influence to harm her if she returns to her home country. B. Ms. XXXXX is a victim of a severe form of trafficking in persons, as defined in the Trafficking Victims Protection Act (TVPA). Ms. XXXXX demonstrates that she is a victim of a severe form of trafficking pursuant to 8 C.F.R. § 214.11(f). Severe trafficking includes “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.” Id.

Appendix P-2

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Ms. XXXXX was lured to the United States with the promise that her son would be able to join her. (See Exhibit 5 at 42 and Exhibit 8). Ms. XXXXX was also told that she would be given a job working as a nanny for the traffickers’ granddaughter, as well as occasional work in the traffickers’ real estate office. (See Exhibit 5 at 42 and Exhibit 8). However, Ms. XXXXX’s traffickers never brought her son to the U.S. and instead forced Ms. XXXXX into involuntary servitude.

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Involuntary servitude is a sever form of trafficking which “includes a condition of servitude induced by means of any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or the abuse or threatened abuse of the legal process.” 22 U.S.C.S. § 7102(5). Ms. XXXXX was forced to work under terrible conditions against her will. Ms. XXXXX was forced to work over 15 hours every day. (See Exhibit 5 at 56). Ms. XXXXX was forced to do all of the cleaning, cooking, and gardening on top of her duties as a nanny for the traffickers’ granddaughter. (See Exhibit 5 at 53-56). Ms. XXXXX was also forced to work at her traffickers’ real estate office. (See Exhibit 5 at 52). If Ms. XXXXX was tired and said that she would do a chore later, her traffickers would yell at her and force her to do the chore right away. (See Exhibit 5 at 56). Further, Ms. XXXXX was forced to clean the house of the traffickers’ daughter. (See Exhibit 5 at 58). Ms. XXXXX was completely cut off from any communication with the outside world. (See Exhibit 5 at 61-81). Ms. XXXXX was never given any of the letters or emails her children sent her and, when family members tried to call her, they were told that Ms. XXXXX was not available. (See Exhibit 5 at 68-81; Exhibit 6 at 5-7; and Exhibit 7 at 4-6). Ms. XXXXX was also not allowed to leave the house by herself. (See Exhibit 5 at 62-64). Ms. XXXXX was told that if she tried to leave the house, she would die because she was in the desert. (See Exhibit 5 at 63). Ms. XXXXX was also told that she could not open the door of the house or go to school because she would be arrested by the police or Immigration. (See Exhibit 5 at 62).

Ms. XXXXX would suffer extreme hardship involving unusual and severe harm upon removal. 8 C.F.R. § (i)(1) provides several factors that may be considered in determining whether removal of the applicant would result in extreme hardship involving severe and unusual harm. 8 C.F.R. § 214.11(i)(1)(vii) sets forth as a factor to be considered “the likelihood that the trafficker in persons or others acting on behalf of the trafficker in the foreign country would severely harm the applicant.” Ms. XXXXX has witnessed, first hand, how violent Xxxx XXXX can get when he is angry. (See Exhibit 5 at 54 and 118-123). When Ms. XXXXX lived with her traffickers, they would fight and yell at each other. (See Exhibit 5 at 54 and 83-85). When this happened, Ms. XXXXX would hide, but she could still hear them fighting and it sounded like the

Appendix P-3

Appendices

C. Ms. XXXXX would suffer extreme hardship involving unusual and severe harm upon removal.

fights got physical. (See Exhibit 5 at 54). Ms. XXXXX is terrified of Xxxx XXXX and feels that if he is able to hurt his own wife, he would have no problem hurting her. (See Exhibit 5 at 122). 8 C.F.R. § 214.11(i)(1)(iv) provides as another relevant factor the impact of the loss of access to the U.S. courts and criminal justice system. The case against Xxxx and Xxxx XXXX is still under investigation. (See Exhibit 9). Ms. XXXXX has cooperated with authorities’ request for information and continues to make herself available to the authorities. (See Exhibit 9 and Exhibit 5 at 128). If Ms. XXXXX is removed to XXXX, she will be unable to assist in this ongoing investigation. Therefore, she will suffer extreme hardship in losing access to the U.S. courts and criminal justice system. 8 C.F.R. § 214.11(i)(1)(i) also considers as a relevant factor the personal circumstances of the applicant. Ms. Xxxx’s son, Xxxx , is presently living with Ms. Xxxx in the United States. (See Exhibit 5 at 129-133 and Exhibit 16). Xxxx has suffered from severe asthma. (See Exhibit 5 at 129-133 and Exhibit 15). While living in XXXX, Xxxx was hospitalized for his asthma condition on several occasions. (See Exhibit 5 at 6 and 12; and Exhibit 15). However, since moving to the United States, Xxxx ’s asthma has greatly improved. (See Exhibit 5 at 133). Finally, 8 C.F.R. § 214.11(i)(1)(vi) sets forth to be considered “the likelihood of re-victimization and the need, ability, or willingness of foreign authorities to protect the applicant.” In the most recent “Trafficking in Persons Report,” the U.S. Department of State found that the “Government of XXXX does not fully comply with the minimum standards for the elimination of trafficking.” Further, the Department of State found that the XXXXvian “government provided limited protection for and assistance to victims of trafficking.” Victims of trafficking have few resources in XXXX. “When detained by police, victims are rarely informed of their rights, and are not provided legal assistance or medical treatment.” Please see attached documents and reports on human trafficking in XXXX:

Appendices

Exhibit 11: United States Department of State, Trafficking in Persons Report 2008 – XXXX, 4 June 2008 Exhibit 12: United States Department of State, Trafficking in Persons Report 2008 - XXXX, 4 June 2008. Online. UNHCR Refworld, available at: http://www.unhcr.org/refworld/docid/484f9a3528.html [accessed 6 May 2009] Complete with graph depicting Tier Ranking by Year Exhibit 13: Fraser, Barbara. “Church Helping Human Trafficking Victims.” Catholic News Services. 12 June 2006. D. Ms. XXXXX has complied with any reasonable requests for assistance in the investigation and prosecution of acts of trafficking in persons. INA § 101(a)(15)(T) states that an applicant comply with “any reasonable request for assistance in the federal, state, or local investigation or prosecution of acts of trafficking….” Human

Appendix P-4

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trafficking is a crime in California. Cal. Penal Code § 236.1. Ms. XXXXX first reported the crimes committed against her to the San Jose, California Vice Unit. She has spoken with Officer Xxxxx XXXX and has continued to make herself available to any law enforcement agents working on the case against Xxxx and Xxxx XXXX:

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Exhibit 10: Police Report Dated ___/___/2008 Exhibit 9: I-914B

In conclusion, based on the enclosed Form I-914, and the attached supporting documents, we respectfully request that Ms. XXXXX’s application for T Nonimmigrant Status be granted, as well as derivative T Nonimmigrant Status for her son, Xxxx XXXXX. If you have any questions, please do not hesitate to contact me. Sincerely,

Xxxxx XXXX, Law Student Working under the supervision of

Lynette Parker, Clinical Supervising Attorney

Appendices

Appendix P-5

M, A A# 12 345 678 I-914

April 16, 2007 Via Certified Mail, Return Receipt Requested ATTN: T VISA UNIT U.S. Citizenship and Immigration Services Vermont Service Center 75 Lower Welden Street St. Albans, VT 05479-0001 RE:

T Visa Application (Form I-914) M, A

Dear Sir or Madam: Ms. A M, through legal counsel, is hereby requesting T nonimmigrant visa status as a bona fide victim of human trafficking as defined by federal anti-trafficking legislation. Please keep this application and all supporting information confidential because this is a human trafficking case.

Appendices

We request that application be granted based upon the following statutory grounds: 1. A is physically present in the U.S. on account of trafficking; 2. A is a victim of a severe form of trafficking in persons; 3. A would suffer extreme hardship involving severe and unusual harm upon removal; and 4. A has complied with any reasonable request for assistance in the investigation and prosecution of acts of trafficking in persons.1 Please find enclosed the following documents that complete A’s application:    

1

Form G-28, Notice of Appearance of Attorney Form I-914, with fingerprinting fee and photographs Fee Waiver Affidavit and Request Form I-192

Please see 8 CFR §214.11 et seq.

Appendix Q-1

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We are also submitting the following evidence in support of A’s application: Exhibit A

Declaration of A M

Exhibit B

Letter from Shelter for Victims of Crimes

Exhibit C

Letter from U.S. Department of Homeland Security, Immigration and Customs Enforcement Office of Investigations

Exhibit D

Copy of A M’s expired Home Country passport

Exhibit E

Copy of Certification Letter from U.S. Office of Refugee Resettlement

Exhibit F

Copy of Employment Authorization Document

Exhibit G

Copy of Form I-94, Arrival-Departure Record

Exhibit H

Copy of Civil Complaint filed on behalf of A M

Exhibit I

U.S. Department of State Trafficking in Persons Report for 2006: Country Narrative on Home Country

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A. A M is physically present in the U.S. on account of trafficking.

Upon arrival in the U.S., she was confined in a prison cell-like sleeping area, paid below minimum wage with less than minimal days off, and forced to provide her labor in extremely exploitative conditions. Carrie Crook constantly threatened A with her lack of legal status and coerced her into staying through threats of physical violence, threats of abuse of the legal process, and the creation of a climate of fear. A subsequently reported her trafficking situation to federal law enforcement and then voluntarily cooperated with federal law enforcement authorities by participating in several interviews with U.S. Immigration and Customs Enforcement (ICE) and the Federal Bureau of Investigation (FBI), participating in a consensual call made to Carrie Crook at the request of ICE and the FBI, and

Appendix Q-2

Appendices

On or about July 2, 2002, A was brought to the U.S. for the purposes of forced labor. She was recruited through an employment agency to sign a two-year contract working in Big City for Carrie Crook. Her employer, Carrie Crook, then persuaded A to accompany Carrie to the U.S. through false promises of lawful status and lawful employment. Carrie arranged for all the travel documents and the plane ticket for A to enter into the U.S.

agreeing to continued cooperation, including testifying at trial, with the criminal investigation and prosecution. A requires the continued protections and services accessible to her from the U.S. criminal, civil, and administrative systems that are wholly unavailable to her if she were forced to return to Home Country. B. A M is a victim of a severe form of human trafficking. A is a victim of involuntary servitude as defined by the Trafficking Victims Protection Act (“TVPA”). Please see 22 USC §7102 et seq. The TVPA defines involuntary servitude as “any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint.” See 22 USC §7102(5)(A). The TVPA goes on to define coercion as “threats of serious harm to or physical restraint against any person; or the abuse or threatened abuse of the legal process” See 22 USC §7102(2)(A)(C).

Appendices

Involuntary servitude includes “a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process. This definition encompasses those cases in which the defendant holds the victim in servitude by placing the victim in fear of such physical restraint or injury or legal coercion.” See 8 CFR §214.11(a). As demonstrated through A’s declaration and supporting evidence, Carrie Crook falsely promised U.S. minimum wage and better working conditions to entice A to this country for the purpose of extracting A’s labor from her under slave-like conditions. She was kept by Carrie Crook through psychological and actual coercion. Carrie Crook even created slave-like quarters for A to sleep in and forced her to live in those quarters for more than 2 years. A climate of fear was established and maintained by Carrie Crook through threats of arrest and deportation, fear tactics such as frequent warnings that A was stupid and vulnerable to the alleged rampant kidnappings and forced prostitution rings that exist in America, and implicit threats of physical abuse if A attempted to run away or disobey her trafficker’s commands. As an individual subjected to trafficking in persons as defined in the TVPA, A meets the statutory definition of a victim of involuntary servitude.

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C. A M would suffer extreme hardship involving severe and unusual harm upon removal.

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A’s removal from the U.S. would result in extreme hardship involving severe and unusual harm, as codified in 8 CFR §214.11(i)(1) and 8 USC §240.58.2 A would suffer harm directly related to her status as a trafficking victim and as a cooperative witness to U.S. federal law enforcement agencies: A’s passport, identity documents, and contact information in Home Country were in the possession of her traffickers since her enslavement and her employers have not yet been captured by law enforcement in the U.S. A’s traffickers threatened her with retaliation should she fail to obey their commands while she was enslaved and the threat of retaliation is significantly increased by the fact that A has cooperated, and continues to cooperate, with law enforcement in their investigation of the criminal activities detailed in A’s declaration. Carrie’s family is large and lives in both the U.S. and Big City and has status, financial wealth, and the power to retaliate against a poor farmer’s daughter like A, especially in a country like Home Country where corruption runs rampant in law enforcement and government agencies and where a comprehensive definition of the crime of trafficking in persons does not exist.3 Upon removal, A would lose all access to the criminal, civil, and administrative protections available to her in the U.S.4 She would lose all access to the social services support network that is critical to her recovery from her experience as a victim of human trafficking. She would be unable to continue to assist as a witness in the pending federal law enforcement prosecution of her traffickers. Moreover, she would lose all access to the civil legal system through which she is currently seeking redress from her traffickers.

2

See 8 CFR §214.11(i)(1)(vi)-(vii) “The likelihood of re-victimization and the need, ability, or willingness of foreign authorities to protect the applicant [and t]he likelihood that the trafficker in persons or others acting on behalf of the trafficker in the foreign country would severely harm the applicant.”

3

See U.S. Department of State, Trafficking in Persons Report, (June 2006), Country Narrative on Home Country, a Tier 2 Special Watch country. Accessed at http://www.state.gov/g/tip/rls/tiprpt/2006/65989.htm on March 12, 2007. 4 See 8 CFR § 214.11(i)(1)(iv).

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A would suffer extreme hardship for additional reasons codified at 8 CFR §240.58. Returning to Home Country as a victim of involuntary servitude, she would lack valid identification documents, have no place to live, be inflicted by psychological

strain, disrupt her social support ties to the U.S., and eliminate her only viable means of adjusting her status to that of a lawful permanent resident.5 As a cooperative federal witness who has suffered the experience of being a forced laborer, A should be allowed to remain and not be removed from the U.S. D. A M has complied with all reasonable requests for assistance in the investigation and prosecution of acts of trafficking in persons. A has met the final requirement of compliance with all reasonable requests for assistance in the investigation and prosecution of acts of trafficking in persons. She has met with ICE and the FBI, federal law enforcement agencies, and undergone multiple days of interviews to date. She understands that she may be required to testify in open court against her traffickers and/or cooperate with additional requests for interviews and meetings from federal agencies and is willing to cooperate fully. E. Conclusion A’s situation is exactly the type of trafficking situation that Congress had in mind when it passed the TVPA and A meets all the statutory requirements for immigration relief as a victim of involuntary servitude. Based upon the enclosed information and supportive evidence, A respectfully requests approval of her application for T nonimmigrant status. Should you have any questions, please do not hesitate to contact me at (415) XXX-XXXX. Thank you.

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Regards,

Ivy Lee Attorney for Applicant Enclosures Cc: Ms. A M

5

See 8 CFR § 240.58(a)(4), (7), (9), (11), and (14).

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C., Kathy DOB: 6/12/76 I-914 Supporting Declaration

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DECLARATION OF KATHY C. 1. My name is Kathy C. I was born on June 12, 1976 in Hualein, Taiwan. I now reside in a confidential location in California. I Am a Victim of a Severe Form of Human Trafficking 2. I have received continued presence from law enforcement and certification as a trafficking victim under the Trafficking Victims Protection Act by the U.S. Department of Health and Human Services. 3. I was induced to enter the United States by a Chinese broker. Based upon his promises of help to enter the U.S., legitimate employment upon arrival, good working conditions and pay, I agreed to go to the U.S. 4. The broker arranged for my travel to the U.S. and I departed from Taiwan on or about [DATE]. 5. I arrived in Los Angeles, California on or around [DATE] and the broker or his associates had made the arrangements for me to immediately be taken to work for the first of several residential homes where prostitution was happening. 6. I had no freedom of movement, my identification documents were taken from me, and I was forced to have sex against my will. I was not paid for any legitimate work that I did and I was told that my debt was being increased by additional fees owed to the broker and owners of the brothels.

I Am Physically Present In The U.S. On Account of Trafficking 8. I am now in a confidential location and am receiving help from social service and legal service organizations. 9. I was brought to the U.S. in [DATE] through arrangements organized by a broker. Once in the U.S., I was fearful for my safety and unable to escape a dangerous situation. I was forced to work

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7. One year later, on or about [DATE], U.S. government agents raided several residential and commercial sites in San Jose, California. I was one of the women at one of these sites at the time of the raid and I was held by the U.S. government for questioning in the subsequent days. I was interviewed by various government agents, including agents from the Department of Justice and the U.S. Attorney’s office. They determined that I was a victim of a severe form of trafficking and released me as a cooperating witness to nongovernmental organizations serving trafficked persons.

in a brothel to pay off my debt and only was removed from this situation due to a government raid on the brothel. I Have Complied With All Reasonable Law Enforcement Requests 10. I have already spoken to law enforcement agents and am continuing to cooperate with law enforcement in their investigation. I am willing to continue to cooperate with them. ICE has requested my continued presence in the U.S. to assist as a witness. I Would Suffer Extreme Hardship Involving Unusual And Severe Harm If Removed 11. I have not told anyone, not even my current boyfriend or my family, about what has happened to me. I don’t know if I ever will because of the shame and humiliation that I would suffer if I did say anything. 12. I am afraid of returning to my home country because my name and identification papers are known to my former employers and the brokers’ ring and I would be severely harmed by them if I ever returned since I am helping law enforcement here in the U.S. 13. I understand that there are still many individuals wanted by the U.S. government in this case who are still not in government custody. I greatly fear that my life would be in danger if I do not have access to the protection, services, and criminal and civil justice system that is available to me in the U.S. The police in my province are corrupt and they are the ones that enforce debts like mine to brokers; they would not provide me with any protection against the broker or his colleagues.

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14. My mother told me during our last phone call a few days ago that she and my father have been receiving phone calls from male callers who threaten them with physical beatings and violence if she does not tell them where I am. She and my father are scared but they do not know what is going on. I have already reported these threats to my lawyer and to the government. 15. This experience has been the most horrific in my life. I am receiving help from nongovernmental organizations and I am developing a support network here in the U.S. that would be absolutely unavailable in my home country. Korea. There, I would be ostracized as a person who was a prostitute, even if it was against my will. I would be an outcast in every way. My family would also have their reputations harmed; my parents would be unable to attend the church that they currently go to. I certify under penalty of perjury, under the laws of the United States of America, that the above statements are true and correct to the best of my knowledge and ability. Respectfully submitted,

_________________________________ KATHY CHOPRA

______________________________ DATE

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Declaration of Grace P-H T visa application (I-914)

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DECLARATION OF GRACE P-H 1. My name is Grace P-H and I am applying for relief as a victim of a severe form of human trafficking. I was forced into prostitution for the financial benefit of my traffickers until I escaped and fled to Big City, California. 2. I was born in the village of ___________in the province of XXXXXX in country XXXX on January 1, _____. I am 20 years old. 3. I lived in my family home in XXXXXX until I was trafficked into the United States on or about _________ 2006. 4. I am currently living in Northern California in a confidential shelter location. Victim of a Severe Form of Trafficking in Persons Entry into the United States: 5. In my village in G, there was a frequent visitor named Daniel who also went by the name of “Chepe.” Everyone in the village knew that he had daughters and granddaughters who lived in the U.S. and that he would go back and forth between the U.S. and G. 6. One day when I was going to the store with my daughter, Daniel was talking with a woman who also lived in the same village as my family. This neighbor called out to me and introduced me to Daniel.

8. Daniel then told me that he had female relatives in the U.S. who needed help taking care of the younger children and also could use help cleaning houses. He said that his female relatives would take care of the costs of travel to the U.S. and for lodging while in the U.S. and that I could pay those costs back to them by taking care of the children and cleaning houses. He never said exactly how much it would cost to go to the U.S. 9. Daniel also said that this wasn’t a trick or anything bad, that I could rest assured that this was a real opportunity for me because there were three other girls who were already going to go with him to the U.S. to take advantage of this opportunity. CONFIDENTIAL: ATTORNEY-CLIENT PRIVILEGE, ATTORNEY WORK PRODUCT

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7. Daniel asked me if I wanted to come to the U.S. It was the first time I had ever spoken to him. I told him, I don’t even have money to buy milk for my daughter, how can I go to the U.S.?

10. I told him that I had never been away from home before and didn’t know if I wanted to leave. I told him that I had to think about it and talk to my parents too. He said ok but I had to hurry and make a decision because the opportunity wouldn’t last forever. 11. A few days later, Daniel came to my parents’ house to talk to my parents. My dad said he didn’t think it was a good idea for me to go all the way to America because it was so far away and I was so young. But Daniel kept saying that this was a fantastic opportunity for me to earn a lot of good money doing work that I wouldn’t need any training for. 12. Daniel asked me how much I was making and I told him that I was working at a bananapacking plant and earning 800 quetzales (approximately 104 U.S. dollars (USD)) every 21 days. My work day was from 5am to 8 or 9pm every day. [1 quetzales is approximately 0.13 U.S. dollars or 1 USD = 7.68 quetzales.] 13. Daniel kept telling my parents that there was no way I could ever earn as much as I could in America if I stayed in my village. He said that I could send money home to help provide good care for my daughter and also help pay for a new roof for my parents’ home. 14. My daughter, Maria, was always getting sick and I was always worried about how to get medicine for her and how to pay for her to see a doctor. 15. My parents’ home had a roof that had a lot of leaks. Whenever it rained, our dirt floor would turn to mud. It was so dirty and awful! Mud would get all over everything, our food, our clothes, our bodies, everything! I hated that roof and that mud.

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16. When I heard Daniel say that I could earn enough money that I could really take care of my daughter and my parents, I thought to myself that I have to go to America. If I don’t take this opportunity, I will never forgive myself for not doing something to take care of my family. 17. Daniel promised me and my parents that I would earn a lot more money than I was earning now, just for babysitting his grandson. He said that I would be living with Isabella and that Isabella would provide me with a place to live and with food to eat. He said that he and his family were good people, just like my family, and that they would treat me like family. He promised that I would be very safe and that my parents had no reason to be afraid for me. 18. My parents were still not sure about letting me go but I told them, I want to go, I want to do this for all of us. So they finally said ok. I know that they were worried about me because I was young. But I believed what Daniel said. Before being victimized by Daniel and his family, I didn’t know what “prostitution” was or what a “prostitute” was – these were just things I had never been exposed to in my village. 19. On or about February 1, 2006, a couple days after Daniel had come to talk to my parents, Daniel picked me up from my parents’ home. He told me that three other girls would be traveling with me and he said their names were Ingrid, Nancy and Gabriela. Daniel took me

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on a bus from San Juan to Tiquezate, where he picked up the three other girls. Then all of us took a bus to Masate where we met the “coyote.”

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20. There was a man who the other girls said was a “coyote,” or someone who smuggles people into and out of the U.S., then took us four girls from G to Mexico on a public bus. Then a second, different “coyote” picked us four girls up and put us in the back of a van with several other people, I don’t remember how many of us there were total but I remember feeling crushed in the back of that van. 21. I never knew the coyote’s name because he never told us. Daniel had said that we’d be fed well during the journey but we were actually never given food during our trip from G to the U.S. I remember this vividly because I got so hungry my stomach was really hurting and it was making all sorts of growling noises. 22. The driver of the van would only let us get out to use the bathroom. We would stop and jump out to go to the bathroom and then jump back in the van and keep going. We could see at one point that we were passing through Tijuana and then we kept on driving until we were told we had reached our destination, Metropolis. I think we were driving for about six days straight. 23. When we arrived in L.A., there were two women who came and picked me and Ingrid up in a taxicab. The two women were named Gloria and Isabella. Gloria was Daniel’s stepdaughter and Isabella was his granddaughter. Isabella’s son, Cesar, was the boy I was going to be babysitting. 24. I saw Gloria give the driver of the van something, I think it was money, but I didn’t see how much. 25. Gloria and Isabella took me and Ingrid to an apartment on _________ Street and we stayed there one night. I think one of Gloria’s brothers lived there or maybe still lives there.

27. Isabella’s stepfather, Daniel, Bianca, Isabella, Isabella’s brother Pedro, and Pedro’s wife Leah and their baby son all lived at the ________ house. Daniel and Isabella didn’t seem to get along very well. Didn’t talk to each other a lot and when they did, they didn’t talk very nicely to each other. 28. I would talk to Leah some because she was friendly to me and nice. She was a cashier at a restaurant. I didn’t really talk to anyone else except for Cesar and Isabella. Victimization:

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26. After that, Isabella came and got me and left Ingrid behind. Isabella took me to a house in ___________ with a house number of ___. I stayed there and took care of Isabella’s son, Cesar, who was six years old.

29. I stayed at ___ ______________ for about one month and took care of Cesar. I was never paid any money for this work. It was after this month that I began to suspect that something very bad was going on with that family. But I still didn’t think that anything bad would happen to me. I just didn’t know enough about the world and about people, I guess, to have been able to imagine the kind of bad things that were in store for me back then. 30. After that first month, Isabella returned to the house with Bianca, another women who was always coming and going from the house. Gloria, Isabella, and Bianca were all in the house and I heard Bianca and Gloria yelling at Isabella, saying “why don’t you put her to work? She’s getting fat like a pig!” Since I was the only other girl there and I guess I had gained some weight, I guessed that they were talking about me. I was confused because I thought I was working pretty hard since I took care of Cesar all day and night but I guessed that maybe they were saying I should start cleaning houses too. 31. The very next day, a man came to the ____ house. Cesar yelled out, “Hey Bianca, there a customer!” I got next to Cesar and asked him, who is it? Cesar told me that a customer was here and that I could see what they were doing by looking through a crack under the door. Isabella came running over and slapped Cesar across the face. It was the first time I’d ever seen or heard anything like that in the house. I just thought maybe it was a boyfriend of Bianca’s or something. I think Cesar was going to tell me or show me something that would have alerted me that there was prostitution going on in that house and that’s why Isabella slapped him to stop him from saying anything to me.

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32. The next morning after Isabella slapped Cesar, Isabella told me that she had gotten Cesar a babysitter and that I was not Cesar’s babysitter anymore. I asked what I was going to be doing then, and Isabella looked at me and said something like, “Where do you think the money comes from to feed you, from thin air? You have to start earning your keep.” 33. Then Isabella took me and plucked my eyebrows, put some makeup on me. Then, Isabella and Bianca took me to a beauty parlor on 7th or 8th Street on Aguilar Street. Isabella told the man there named Ajax to dye my hair blonde, give me green contact lenses even though I didn’t wear glasses or have any problems with my eyes, and told Ajax to make me look really pretty. I was happy because Isabella and Bianca were being so nice to me and it was the first time I had all this glamorous treatment! 34. Then Isabella also bought me some new clothes. Daniel had told me that I couldn’t bring any clothes with me from G so I was so happy to get some new clothes. And I never had a lot of pretty clothes before so when Isabella bought me some clothes with pretty colors and that showed up off my figure, I felt like a princess or a movie star with my new hair, new makeup, and new clothes. 35. Then Isabella and Bianca took me to a room at 8th Street and a street that sounded like “Irolo” but I’m not sure of the spelling. There was a refrigerator, a mattress in the closet, and a bed in the room.

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36. A little later, an older man showed up at the room. Isabella let him into the room. He grabbed Isabella’s behind. Isabella said, “No, wait, I have a new girl.” She called me over to them. Then the man started taking off his clothes. I was shocked and couldn’t say anything or do anything. I felt totally paralyzed.

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37. Isabella grabbed two condoms and put them on this man’s penis. She said to me, “Look, this is what you’re gonna do. Bianca and I are going to be around, watching you, so don’t try and run away from us or you’ll be sorry. If you try to escape, we’ll deal with you. We know about your daughter.” From that day on, Bianca was always with me, always watching me. 38. I didn’t know what to do. I didn’t say or do anything except back away as far as I could from Isabella and the stranger. I looked away and I just waited for it to be over. When the man left, I was crying and I told Isabella, “I don’t want to do this, I don’t want to do anything like this!” 39. Isabella and Bianca just looked at me and said, “Don’t cry. You already have a daughter so don’t pretend like you’re a virgin or some innocent girl.” They told me that when I was done working off my debt, then they’d let me go. 40. I remember Bianca’s expression because she was really happy when Isabella was telling me this. She said to me that she was happy I was going to be working too because then she wouldn’t be the only one taking care of all the customers. 41. Isabella and Bianca didn’t make me have sex that day. After other customers came to the room that evening, they took me back to the ____ house.

43. The next day, I took a shower. Then Isabella and Bianca put make up on me again. They dressed me up again. How different it felt this day than just the day before. I didn’t feel like a princess or a movie star this time. I felt like I was being dressed up for my own execution or something. Then they took me back to the room at 8th and Arroyo. 44. Isabella stayed in the room with me and sent Bianca out to look for customers. 45. Isabella told me that she had her menstrual period so I would have to “take care of” all the customers that day. Bianca brought three men back to the room that day. Then Isabella and Bianca stayed in the room and watched as the three men each had sex with me.

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42. I was terrified. I didn’t know what to do. I didn’t know how to get away. I didn’t know what would happen to me or my daughter if I tried to escape. I didn’t know where to try and run away to! All I knew was that ____ house and the people in it. And all the people in that house were family members of Isabella! I felt totally alone, scared, and sick to my stomach. Starting that night, they never left me alone. I had to sleep in the same bed with Isabella and Bianca that night.

46. After that first day, Isabella had me work every single day. Every day, every day. There were days when they made me work and have sex with so many men that I couldn’t even walk afterwards and could only lie there. On the weekends, I had to have sex with a lot of men, I don’t remember how many but it was more than 10 on each day of the weekend. On the weekdays, I had to have sex with between 6 to 12 men each day. Sometimes Isabella would have me work in the room but more often she would have me work in the closet on the mattress inside the closet. 47. Isabella charged the customers $120 for having sex with me because I was a new girl, she said. If a customer gave me a tip, I had to give the tip to Isabella or Bianca. I didn’t get to keep any of the money from the prostitution and no one ever gave me any money. 48. When I would have my menstrual period, Isabella and Bianca would take me to a store in L.A. and have me injected with “vitamins.” The man in the store sold medicines illegally and he told me that these vitamins would give me more energy and would also stop my period on the same day that I got the injections and my period did stop on the same day. 49. I didn’t have a lot of energy because I was working everyday. The closet had no air and it was so hot in there. Plus, I would get really hungry but Isabella would get angry when I would ask for food. She would only feed me twice a day, sometimes only once a day. I would get lunch at about noon and then dinner at 2am. 50. Isabella made me sleep in the same bed as her and Bianca in the house at ____. There weren’t any special locks on any of the doors at the ____ house but someone in the family was always watching me.

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51. Isabella also warned me never to betray her by trying to run away or by telling anyone about what was happening to me. She told me that if I ever betrayed her, she would kill me. I believed her. 52. Isabella also threatened my family in G, especially my daughter. She would say to me, “If you really love your daughter, you will stay and work for me because if you leave, you know who’ll face the consequences.” 53. A few different times, Isabella tried to physically hit me when she felt that I was challenging her. 54. One time, Isabella had been working me for a few days straight and I was really exhausted. Then Bianca showed me some new boots and bragged to me that Isabella had bought her the boots. I said, Isabella, why didn’t you buy me some boots too? I was upset and crying and said to her, you’re prostituting me to put money in your pocket and you don’t even buy me clothes or boots like you do Bianca! Isabella got really angry and she screamed at me that no idiot was going to tell her what to do. She screamed at me that I didn’t know who she was otherwise you wouldn’t dare to talk back to me! She had her face in my face and she was

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screaming at me, “I don’t give a shit anymore! I’m the boss here! You’re going to get to know me real well!”

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55. She raised her hand to hit me but then the phone rang. I was crying hard by then. 56. Sonia, Isabella’s mother, was on the phone. I heard Isabella say, “This bitch is trying to challenge me!” Isabella put the phone on speaker phone and I heard Sonia say, “Just relax, Isabella, let me talk to her.” 57. I started telling Sonia, “I thought I was going to be a babysitter and you said your daughter was a good person and now she’s not just making me her prostitute, she’s trying to hit me too! She just treats me any way she wants!” I probably didn’t make sense, but all the thoughts that going around in my head came out: “I babysat Cesar and I didn’t get paid. Isabella’s made me into her prostitute and she still doesn’t pay me. I don’t get fed, I’m always hungry and tired and I can’t even send money home for all this suffering I’m going through!” 58. Sonia said to me, “You just keep working. Don’t worry. I’ll talk to Isabella.” Sonia started talking and said to Isabella: “When you and Bianca only were working, you weren’t bringing in a lot of money. But now you have this new girl and she’s bringing in good money. If you don’t treat her right, she’s going to try and run away. You better start treating her right.” Then she hung up. 59. Isabella cleaned me up and then she and Bianca took me to the room to work. Isabella told me that I had to work because she had her period and that I should be like a sister to her and take care of her customers for her that day. I didn’t have any choice and I did what I was told.

61. When they left, I grabbed some of my clothes, threw them over the fence into the neighbor’s yard next door, then called Leah’s mom, Fadua, on the house telephone. I thought Leah was my friend and would help me. 62. Leah didn’t get along with Isabella or Bianca. I remember when Isabella first started forcing me to have sex, I told Leah a little about what was happening to me. She couldn’t help me, but she did feel sorry for me, which was more than what anyone else did for me there. And on very rare occasions, Leah would tell Isabella that she was going to the store and ask to take

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60. After working for Isabella for about four months, I tried to run away. But I didn’t know anybody really so I only got to the neighbor’s house next door. Isabella and Bianca were in a hurry that day to get to the apartment from the ____ house to start working and I told them that my period was so heavy and I was cramping so bad that I couldn’t go today. Isabella told me to go to the bathroom and clean myself up in the bathtub and come with them but I begged her and said I just couldn’t. I guess they believed that I was in too much pain to move, let alone run away because Isabella and Bianca just looked at me and then they left me there in the house to go to the apartment themselves. The new babysitter for Cesar was in the house with me. I was not afraid of the new babysitter because she was a young girl and seemed very meek and quiet.

me with her. Isabella would tell her: You’re my sister-in-law but if she runs away while she’s with you, you’re going to be my whore and work off her debt, understand? 63. After I called Fadua, Fadua said that I could come to her house. I had been there once with Leah and so I had the address and I called a taxi and was dropped off there. 64. I found out that Daniel discovered where I was because Leah told him. He came to Fadua’s house and he gave me some money, about $400. He came back another 2 or 3 days later and gave me $800 or $900. I didn’t know what to think about why he was helping me. 65. Then, he came back to Fadua’s house and was talking to me by himself. He stroked my face and he told me that he liked me. He said that if I wanted to return to G, he would help me but that I would have to be his girl. He said he knew that he was old enough to be my dad but he really liked me. I just said no, no. I didn’t want anything to do with him. He told me to just think about his offer. 66. After about 8 or 9 days at Fadua’s house, I went to the local laundry to do some wash for Fadua. While I was gone, I later found out that Fadua called Gloria and Isabella and told them I was there. 67. When I got back to the house, I didn’t know that Isabella, Gloria, and Bianca were on their way over. When they showed up I heard them outside and I ran and hid in the closet. 68. Isabella and Bianca came into the house cursing at me, screaming profanities about me. Gloria found me in the closet and she said, if you don’t want to be a prostitute anymore, you can come live with me and take care of my son. I said I don’t want to go back with any of you, I’ve paid off any debts I owed to your family!

Appendices

69. Gloria said that I still owed just a little bit, that she treated her girls really good and I was almost done, so why not finish paying my debts with her instead? 70. I was hysterical and I yelled at them that I was going to start screaming and that I would tell the police that they were trying to kill me. 71. Gloria told me that she didn’t have a need to kill me herself. She said she could call up a gangster anytime and have any place I tried to hide shot up and then I’d be dead. I was afraid, really afraid, of them, and when she said that to me, she said it like it was no big deal. I believed her. 72. So I let them take me out of Fadua’s house. Isabella and Gloria took me to the apartment. I begged them to just tell me how much did I still owe them so at least I would have some idea of how much longer I had to work for them. 73. They told me I still owed them $16,000 because of all the food, electricity, clothing, rent, and other costs that they had incurred for me.

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74. Gloria took me home with her to her place on Virgil Street in L.A. that day and I started living and working for her for a total of about four months. Gloria, her 15-year-old son, her sister Christina, and three of her “girls” lived there: Irma, Marina, and Rosara. A fourth girl, Cathy, eventually joined us a while later.

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75. Gloria made me have sex for money and took the money from the customers just like Isabella. Plus, Gloria made me have sex with her son anytime he wanted. When he wanted to have sex with me, he would just grab me. If I resisted, he would start getting mad and then Gloria would say warningly, “Better take care of my son…” I had sex with him three times during those four months. 76. Gloria would threaten me that if I disobeyed her, she would sell me to a pimp that was called “El Negro.” I had seen El Negro on the street before and he looked like a crazy man, staring at me all the time. I was really scared of being sold to him. 77. Gloria would also threaten my daughter, just like Isabella did. She would say that my daughter would bear the consequences if I ever ran away. 78. Gloria also told me that there had been other girls who had tried to run away and every single one had been caught and brought back and then was severely beaten. I believed her. 79. Gloria also told me that if I was a bad girl, she would chop me into pieces, put me in her oven and eat my flesh. She would say, “I’d rather eat the flesh of a whore than let a whore escape from me.” 80. She’d sleep in front of the front door, holding a knife. Sometimes she’d push a sofa in front of the front door and sleep on it with her knife but other times she’d just sleep on the floor with the knife instead. When she’d wake up, she’d start waving her knife around like a crazy person.

82. I don’t know what to think about the witches. But I think they do have power because once, Isabella cursed Angela with an accident and crash in her car. Then, the very next day, Angela’s husband was driving down Aguilar and he crashed into a street pole! I do worry about being cursed since I did eventually run away and I’m sure Isabella and Gloria told the witches to curse me.

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81. Isabella and Gloria both believed in witches, or “brujas.” They would bring me and the other girls to see these witches. These witches would make us bathe in lemon water, have us sprayed with a special spray to help keep us “enticing” to the customers, and one time, they made me smoke 21 cigars to “cleanse” me. They would tell us that we would be cursed if we tried to run away. Gloria once sent one witch, named Nancy, a few dozen pictures of me. She said that the pictures would be used by Nancy to show the devil to hurt me if I ever tried to run away.

Termination of slavery situation: 83. In December 2006, one Saturday, Gloria told me suddenly that she was giving me back to Isabella for a while. I really can’t recall the month, it might have been late November. She didn’t say why or tell me anything else. I was really sad because at Gloria’s house, at least there were other girls there that I could talk to and be with. With Isabella, all I had was Isabella and Bianca, both of them treated me as badly as they wanted to any time. 84. The very next day, a Sunday, Isabella and Bianca took me to the apartment. When we and the other girls that Isabella and Bianca owned were all out on the street in the van working, the police stopped our van and told us all to get out. Me and two other girls were taken to a police station, I think everyone was but I’m not sure, and we were all put into separate rooms. The two other girls, Carol and Lucy, and me were handcuffed in the police station for about two hours. Some police officer, a woman, asked me a bunch of questions. At the end, a police officer named Officer King or Keen let us go. He said he was giving us a break but he didn’t want to see us around Aguilar again. 85. When we got out of the station, Lucy and Carol pleaded with me to not call anyone, to let them have some time so they could get on a bus and get out of the city. Both of them were working for Isabella but for less than a month. 86. I didn’t know what to do. But I was really scared that if I stayed and those two girls left, I’d get blamed for them escaping and that Isabella would hurt me bad and make me work off their debts too. So I decided that if they were going to run away, I would go with them.

Appendices

87. We got on a bus and told the driver we had no money, that we were lost, and that we didn’t know where to go since it was getting dark. I think he felt sorry for us because we looked so scared. He said he could drop us off at a church and he told us to ask the priest at the church for a place to stay that night. We did what the driver told us to do and the priest, a black man, very tall, told us we could sleep in the storage room in the church that night. In the morning, the three of us left the church. 88. Lucy called a friend of her ex-husband’s to come and pick her up. He came and Lucy asked him to also give me and Carol a ride too. He started driving. I didn’t care where we were going, I just wanted to get far away from Gloria and Isabella as possible! He said he was driving to Big City. 89. We arrived at night in Big City and it was really really cold. Lucy’s husband’s friend had a room in a shabby hotel and he said we couldn’t stay with him because the place was too small. The whole floor shared one bathroom. I begged Lucy to let me and Carol sleep for at least one night with them because we had no other place to go and no money. I begged and begged and finally the man said ok. 90. The next morning, Lucy said we’d have to leave and find our own way. She pulled me aside and gave me her bracelet and rings. She said, this is for you. Sell them for some money and

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get some food and a place to stay tonight. She pointed at Carol and said, Carol has her own jewelry but you don’t have anything. I didn’t know what to say. I wanted to keep in touch with her but we both didn’t know how to do that since neither of us had a cell phone.

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91. When we left Lucy, Carol said she was going to go to Virginia where she had some family. I didn’t know where Virginia was and I didn’t know if Carol would end up just kicking me out like Lucy, so I said ok, but I’m going to stay here. 92. I walked all around Big City and finally found a place where lots of people could speak Spanish, in the Mission District. I asked people on the street if there was any place where I could get some help with a place to stay or to find a job and people all told me to go to a community service office. When I went there, I found a woman who could speak Spanish and she sat me down and started talking to me, asking me questions. Her name is Mary. 93. I was so tired and scared. Everything that happened to me, just started pouring out from my mouth. Mary just listened and listened to me. She was so kind and so gentle and she said she would help me. She is the one who found me my lawyer too. Compliance With All Reasonable Law Enforcement Requests 94. Later I found out that some of the other girls still in Metropolis had been talking to the FBI and immigration about what had happened to them with Isabella, Gloria, Daniel, and that whole family. An immigration officer named MP contacted me and asked if he could meet with me in person to ask me about what had happened to me. 95. At first, I was really scared that maybe he was someone that Isabella or Gloria had hired to find me. I told Mary about this and she said she would call MP and find out if he was for real. After she talked to him for a while, she told me that she believed that he was really an immigration officer and that he had promised to help me and not to hurt me.

97. They asked me a lot of questions and I tried to answer everything they asked of me. The first interview was the whole day and then we didn’t even finish so they asked me to meet them again the very next day and I said yes. The second interview lasted for half a day because MP and Lauren had to fly back to L.A. that same day. 98. I know that I might have to go to more interviews and answer more questions. I also know that I might even have to testify at trial. I’m scared, really scared, but I’m willing to do it to help put that whole family behind bars where they belong. I think they are evil people, really evil.

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96. On ________________ and ________________, I met with Immigration and Customs Enforcement (ICE) agent, MP, and an FBI agent named Lauren W. They flew to Big City from Metropolis and I met them with Mary and my attorney.

99. My lawyer asked MP and Lauren for something in writing to show that I am cooperating with them and their investigation and to also have them get me a work permit and make me legal in the U.S. until I could apply for my own T visa. MP and Lauren said that they would be getting me a work permit and would also ask for my legal “continued presence” in the U.S. MP said that as soon as he got my work permit from immigration, he would send it to my lawyer. My lawyer said that she hasn’t gotten any work permit yet from MP or Lauren so she said she is going to keep contacting them to find out what is taking so long. 100. On ______________, my lawyer met with me again. She told me that MP and Lauren had asked for me to come to Metropolis so that they could interview me again with an attorney from the U.S. Department of Justice too. She said that they told her I would need to be there for at least two days so I could answer questions and even drive around with them to identify locations where I was held. I’m really afraid of going back to L.A. but I told her that I would do it as long as she or Mary could come with me. I did do this interview in Metropolis with federal law enforcement on ___________. Physically Present in the U.S. on Account of Trafficking 101. I was brought into the U.S. by my traffickers for the purpose of forcing me into prostitution for their financial benefit. Since escaping from my traffickers, I have been in hiding and helping the U.S. government with their criminal investigation and prosecution of my traffickers. Extreme Hardship Involving Unusual and Severe Harm 102. Mary helped me get into a shelter where I could get some counseling as well as lodging for a while.

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103. I didn’t believe that I needed help with any of what had happened to me at first. I thought, well, I just need to keep moving on with my life now. 104. But after a few weeks at the shelter, I realized that I’m hurting because of what Isabella and Gloria did to me. 105. I couldn’t sleep without having nightmares. Even during the daytime, I would feel like someone was watching me, about to attack me. I wasn’t hungry or interested in doing anything. I felt numb and sad for no reason. I felt all alone, completely without any friend or companion in the entire world. 106. The only person I could really talk to about this stuff was Mary. She kept encouraging me to see a therapist or counselor. I finally agreed. 107. I heard from MP and Lauren that Isabella and Sonia haven’t been caught by the government yet, that they are both free out there somewhere. I know they have the money and power to travel between the U.S. and G too.

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108. I’m terrified all the time that I’m going to see her suddenly and that she’s going to have a gun or a knife or something and hurt me really bad. Or even worse, that I’ll call my mom and find out that my daughter’s been killed or stolen. Isabella and Gloria always threatened me that that would happen, that they’d make me pay by hurting my daughter and me and I believe that they will if they have the chance.

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109. I want to stay in the United States and try to get help to make a healthy and safe life for me and my daughter. I know part of that is helping the government put this evil family in prison and I’m willing to do what I can to help the government do that. I also know that I need to keep seeing my counselor and get better in my mind, my body, and my heart and to stop thinking and feeling so bad about what Isabella and Gloria and Daniel and that whole family did to me. 110. I respectfully ask for the government’s help now to stay lawfully in the U.S. and to bring my daughter here to join me.

________________________________ GRACE P-H

_____________________________ DATE

I hereby attest, under penalty of perjury, that I am fluent in the languages of English and Spanish and that I faithfully translated the above from English to Spanish on the day of _______________________, 2007, in Big City, California.

_________________________________ INTERPRETER

______________________________ DATE

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CONFIDENTIAL: ATTORNEY-CLIENT PRIVILEGE, ATTORNEY WORK PRODUCT

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November 5, 2009

VIA CERTIFIED MAIL

T Visa Unit United States Citizenship and Immigration Services Vermont Service Center 75 Lower Weldon Street St. Albans, VT 05479-0001

Re:

RESPONSE TO REQUEST FOR FURTHER EVIDENCE Applicant: XXXX A# XXXX I-914 Application for T Nonimmigrant Status In Removal Proceedings

Dear Sir/Madame: The present is submitted in response to your request for further evidence. Ms. XXX is a victim of trafficking in persons based on the following law and documents.

Appendices

VICTIM OF SEVERE FORM OF TRAFFICKING Pursuant to 8 CFR §214.11(a), “[s]evere forms of trafficking in persons means … 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.” Ms. XXX was recruited, harbored and transported into the United States for labor and services through the use of fraud and force for the purposes of peonage, and debt bondage. 1. Trafficked into the United States The RFE states that Ms. XXX “never entered the United States whereby you became a victim of severe trafficking in persons. Rather your parents made arrangements for you to be smuggled into the United States with the agreement to pay a fee for these services.” Further, the RFE states that “smuggled aliens are often held hostage until their debt is paid off by family members or others.”

Appendix U-1

The Department of State and the Department of Justice distinguished smuggling and trafficking in the Federal Register. “Unlike alien smuggling, … severe forms of trafficking in persons must involve both a particular means, such as the use of force, fraud, or coercion, and a particular end, such as involuntary servitude or a commercial sex act….” However, individuals who are smuggled into the United States in order to be used for labor or services may become victims of a severe form of trafficking in persons ….” 66 Fed. Reg. 38514, 38515. [Emphasis added.]

Ms. XXX’s circumstances do not fall within the examples of smuggling stated in the RFE. It is clear that the intent of the traffickers was not to hold Ms. XXX hostage for payment of a debt, but to force her to work to pay off an enormous debt ($74,700) in a vague location and under unspecified conditions to be ultimately determined by the traffickers and not Ms. XXX, given that Ms. XXX was an unaccompanied minor in a foreign country and given that arrangements about nature and length of employment were left vague by the traffickers. [Exhibit I.4, Declaration p. 3 #13 & 14; Exhibit I.15, Declaration of Father] Even if USCIS finds that the initial contact between Ms. XXX, her parents and the traffickers was for purposes of smuggling, the incident became human trafficking at the point the traffickers suggested to Ms. XXX’s parents payment of the majority debt would be through Ms. XXX’s

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Ms. XXX was in fact trafficked into the country. She was recruited, transported and harbored for labor and services through fraud and force for the purpose of peonage and debt bondage. The traffickers, who approached Ms. XXX’s parents, offered to transport Ms. XXX safely to the United States for a sum, of which $74,700 was to be paid through Ms. XXX’s labor. [Exhibit I.15, Declaration of XXXX XXX, Father of XXXX (Declaration of Father)] She was recruited through fraud with promises that she would work for a limited amount of time and would be allowed to attend school. [Exhibit I.4, Declaration of XXXX XXX (Declaration) pp.2-3 #11 &13; Exhibit I.15, Declaration of Father] The traffickers transported Ms. XXX by arranging and facilitating Ms. XXX’s transportation from Hong Kong through Ecuador, Guatemala, Mexico and into the United States. They were in the process of transporting her through Texas in route to New York when Ms. XXX was discovered. [Exhibit I.4, Declaration p. 3 #15] The traffickers planned to force Ms. XXX to work in a situation of employment the nature and conditions of which were never clearly defined and the length of employment never clearly established. [Exhibit I.4, Declaration p.3 #13; Exhibit I.15, Declaration of Father] While Ms. XXX believed that she might be working in the kitchen of a Chinese restaurant and living with other workers from that restaurant, the choice of work and conditions were vague and as such ultimately in the control of the traffickers. [Exhibit I.4, Declaration pp. 2-3 #11, 13, 14] The extent of the debt to the traffickers would have made it impossible for Ms. XXX to work and to attend school. The length of employment would have been more than the limited amount that Ms. XXX was led to believe given the size of debt owed to the traffickers. Neither Ms. XXX nor her parents were informed by the traffickers the wages she would receive for her work, nor the portion of her wages that would go to the debt owed her traffickers. [Exhibit I.4, Declaration p.3 #13; Exhibit I.15, Declaration of Father] Furthermore, the traffickers throughout the journey made it clear through physical violence and threats that Ms. XXX had no other choice than to comply with their mandates. [Exhibit I.4, Declaration pp. 5-6 #22, 23, 24]

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labor without specifying the nature of her labor, defining the rate of pay, the amount of her salary that would be used to pay off the debt, the conditions of her employment, and the length of her employment. Thus, Ms. XXX was recruited, harbored, and transported for the purposes of debt bondage and peonage.

2. Recruitment The RFE states that Ms. XXX has not shown that she was “recruited, harbored, or transported through force, fraud, or coercion…. New Webster’s Dictionary and Thesaurus defines recruit as the following: “to enlist.” Ms. XXX was enlisted by the traffickers to work in undetermined location under unspecified conditions, in order to pay the majority of a disproportionately large debt owed to the traffickers. [Exhibit I.4, Declaration pp. 2-3 # 11, 12, 13, 14; Exhibit I.15, Declaration of Father] Neither Ms. XXX nor her parents were not informed by the traffickers of the exact nature of her employment, her wages, or her working conditions. [Exhibit I.4, Declaration p. 3 # 13, 14; Exhibit I.15, Declaration of Father] She was led to believe that she would work for a limited amount of time and be able to go to school. She and her parents were also led to believe that she would be taken directly and safely to the United States. [Exhibit I.4, Declaration pp. 2-3 # 11, 16; Exhibit I.15, Declaration of Father] Thus, Ms. XXX was recruited through fraud for purposes of debt bondage and peonage. 3. Harboring

Appendices

New Webster’s Dictionary and Thesaurus defines harbor as the following: “to shelter.” Upon arrival in the United States, Ms. XXX was sheltered in Texas before being put on the roof of a train. Ms. XXX entered the United States on October 4, 2008, at or near Hidalgo, Texas, and was discovered three days later by U.S. Customs and Border Protection on October 7, 2008, in Texas. [Exhibit I.12, DHS Warrant for Arrest of Alien] The traffickers sheltered Ms. XXX in the United States in route to her ultimate destination of New York, where she understood she was to work in a place and under conditions ultimately to be determined by her traffickers, since no firm employment had been arranged by Ms. XXX or her parents. [Exhibit I.4, Declaration pp. 23 # 11, 13, 14] Ms. XXX did not believe she had the ability to leave the shelter because of the weapons the traffickers carried and the threats and violence she had experienced in route. [Exhibit I.4, Declaration pp. 5-6 # 22, 24 & 25] Thus, Ms. XXX was harbored through fraud and force for purposes of debt bondage and peonage.

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4. Transportation New Webster’s Dictionary and Thesaurus defines transport as the following: “to carry (goods, people or animals) from one place to another.”

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Ms. XXX was transported by boat from mainland China to Hong Kong. [Exhibit I.4, Declaration p.3 # 15] Subsequently, she was transported by airplane from Hong Kong to Ecuador. [Exhibit I.4, Declaration p. 3 # 15] From Ecuador, through Guatemala, Mexico, and into the United States, she was transported by truck, ferry, and guided by armed guides on foot. [Exhibit I.4, Declaration p. 3 # 15] The traffickers arranged for the transportation, provided some travel documents, and retained control of the travel documents. Ms. XXX was placed on the roof of a train in Texas in route to her final destination of New York for purposes of working in a location and under conditions to be determined by her traffickers. [Exhibit I.4, Declaration p. 3 # 15] Ms. XXX was not free to travel on her own. Her traffickers threatened her and her traveling companions not to escape. The traffickers carried weapons, and clearly indicated they would harm any one who tried to escape. [Exhibit I.4, Declaration pp. 5-6 # 22 & 25] Thus, Ms. XXX was transported through fraud and force for purposes of debt bondage and peonage.

5. Fraud The RFE states that Ms. XXX has not shown that she was “recruited or harbored through force, fraud, or coercion…. New Webster’s Dictionary and Thesaurus defines fraud as the following: “the use of deception for unlawful gain or unjust advantage.”

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Ms. XXX was recruited through fraud. Ms. XXX was led to believe that she would receive safe passage to the United States where she would work for a limited period of time and have the opportunity to go to school. [Exhibit I.4, Declaration pp. 2-3 # 11, 14, 16; Exhibit I.15, Declaration of Father] She believed that she would most likely work in the kitchen of a Chinese restaurant and would live with other workers from the restaurant. [Exhibit I.4, Declaration pp. 2-3 # 11 & 14] Ms. XXX had no knowledge of the rate of pay for kitchen workers in the United States, in light of her debt of $74,700. Her traffickers did not define or clarify the exact nature of her employment with Ms. XXX or her parents, nor did they inform her or her parents about the amount of her salary that would go to the debt or the amount of hours of work such a debt would require her to work. [Exhibit I.4, Declaration p. 3 # 13; Exhibit I.15, Declaration of Father] Thus, the traffickers deceived Ms. XXX into believing her term of employment would be short, when in fact the traffickers would have known she would be forced into a situation of long-term employment. [Exhibit I.4, Declaration p. 3 # 13] Further, the traffickers would gain from placing Ms. XXX in an employment situation of their choosing, since location and conditions of employment were left vague.

Thus, Ms. XXX was recruited through fraud, because she was recruited to come to the United States to work in a location determined by her traffickers under conditions outside of her control without the knowledge of the specifics of her salary and working conditions or the extent of her debt in light of salaries in the United States. 6. Force New Webster’s Dictionary and Thesaurus defines force as the following: “the exertion of physical strength….” Ms. XXX was transported and harbored through force. The traffickers at each point along her journey carried weapons. [Exhibit I.4, Declaration p. 5 # 22] They hit and threatened Ms. XXX and her traveling companions when they did not comply with the traffickers’ demands. [Exhibit I.4, Declaration pp. 5-6 # 22-24] The traffickers threatened Ms. XXX and her traveling companions that they would be harmed if they tried to escape. [Exhibit I.4, Declaration pp. 5- 6 # 22, 25] Ms. XXX was hit and sexually molested by her traffickers. [Exhibit I.4, Declaration p. 6 # 24] Thus, Ms. XXX felt she could not escape her traffickers or refuse to acquiesce to their demands. [Exhibit I.4, Declaration pp. 5-6 # 22, 24] Thus, Ms. XXX was harbored and transported through force, through being hit, sexually abused, and threatened with weapons.

7. Peonage and Debt Bondage

Appendices

The RFE states that [i]t is unclear of which form of trafficking you are claiming to be a victim. Please identify the type of trafficking you are claiming, i.e. involuntary servitude, peonage, debt bondage or slavery.” On page 5 of Ms. XXX’s cover letter dated September 15, 2009, she asserts she is a victim of debt bondage and peonage. [Cover Letter previously submitted, p. 5] Ms. XXX alleges she was recruited, transported and harbored for purposes of peonage and debt bondage. Specifically, in her cover letter dated September 15, 2009, counsel for Ms. XXX states that Ms. XXX was “recruited, harbored and transported by the traffickers for the purpose of debt bondage and peonage.” [Cover Letter previously submitted, p. 5]

a. Peonage 8 CFR §214.11(a) defines peonage as “a status or condition of involuntary servitude based upon real or alleged indebtedness.” Ms. XXX was informed she would be required to work in order to pay a debt. [Exhibit I.4, Declaration pp. 2-3 # 11-13; Exhibit I.15, Declaration of Father] She believed she might be working in the kitchen of a Chinese restaurant but her traffickers provided no specific details of

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her employment terms and conditions. [Exhibit I.4, Declaration p. 3 # 13-14] Because arrangements for employment were left vague, this left the ultimate location and conditions of employment in the hands of the traffickers. Ms. XXX, as a minor, unaccompanied, and unfamiliar with English and the United States, was extremely vulnerable to the control the traffickers exercised over her location and conditions of employment. Ms. XXX was told that she owed the traffickers a debt, but she was not told how much that debt was, nor how much she would earn in her place of employment, nor how her earnings would be used to pay down this debt. [Exhibit I.4, Declaration pp. 2-3 # 12-13] It was only later that Ms. XXX learned the extent of her debt, but she had no point of reference about wages and length of employment that would be required to pay such a debt. [Exhibit I.4, Declaration, p. 2 # 12]

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Ms. XXX was thus recruited, transported, and harbored for purposes of peonage.

b. Debt Bondage 8 CFR §214.11(a) defines debt bondage as “the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited or defined.” [Emphasis added.]

Ms. XXX was thus recruited, transported, and harbored for purposes of debt bondage.

PHYSICAL PRESENCE IN THE UNITED STATES ON ACCOUNT OF A SEVERE FORM OF TRAFFICKING IN PERSONS Pursuant to 8 CFR §214.11 (g), an applicant for T nonimmigrant status “must establish that he or she is physically present in the United States …, or at a port-of-entry thereto on account of such trafficking, and that he or she is a victim of a severe form of trafficking in persons that forms the basis for the application. Specifically, the physical presence requirement reaches an alien who: … was recently liberated from a severe form of trafficking in persons; or was subject to severe

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Ms. XXX’s parents agreed to the traffickers’ terms that the majority of the payment of the debt to the traffickers pledging their minor’s daughter’s personal services. [Exhibit I.4, Declaration, pp. 2-3 # 12 & 14; Exhibit I.15, Declaration of Father] The amount of the debt to be paid through labor was $74,700. However, Ms. XXX and her parents were not told the length of time Ms. XXX would need to work to pay off this debt, nor the nature and conditions of the services she would be required to perform. [Exhibit I.4, Declaration p. 3 # 13; Exhibit I.15, Declaration of Father] Ms. XXX and her parents understood that Ms. XXX’s traffickers would likely determine her place of employment, and that the nature and conditions of her work would not be within her control, since arrangements for her employment had been left vague. [Exhibit I.4, Declaration pp. 2-3 # 11 & 14; Exhibit I.15, Declaration of Father]

forms of trafficking in persons at some point in the past and whose continuing presence in the United States is directly related to the original trafficking in persons. Ms. XXX is physically present in the United States on account of the severe form of trafficking discussed above. She would not have been present in the United States but for the actions of her traffickers and the arrangement made by her traffickers to secure a debt through promise of her labor, the nature and length of such service being undefined and vague. [Exhibit I.4, Declaration pp. 2-3 # 11, 13-14; Exhibit I.15, Declaration of Father] USCIS may determine that Ms. XXX is more properly deemed to be at a port-of-entry to the United States since she was discovered near the United States – Mexico border by Customs and Border Protection (CBP). [Exhibit I.4, Declaration p. 3 # 15; Exhibit I.11, Form I-862, DHS Notice to Appear; Exhibit I.12, Form I200, DHS Warrant for Arrest of Alien] If such is the case, Ms. XXX was present at a port-ofentry on account of the trafficking. She arrived at the port of entry through actions of her traffickers and was harbored near that port of entry by her traffickers before being put on the roof of a train in route to her ultimate destination. [Exhibit I.4, Declaration p. 3 # 15] Being physically present at a port-of-entry on account of trafficking would recognize that victims may be identified in route to their ultimate destination in the United States, which is Ms. XXX’s case. She was discovered on a train in Texas by CBP. [Exhibit I.4, Declaration p. 3 # 15]

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The RFE per 8 CFR §214.11(g)(1) requests submission of evidence that Ms. XXX is physically present in the United States, including evidence as to 1) date and place of entry; 2) manner and purpose of entry; and 3) documentation that Ms. XXX is now in the United States on account of her victimization. Ms. XXX entered the United States on or about October 4, 2008, at or near Hidalgo, Texas. [Exhibit I.4, Declaration p. 3 # 15; Exhibit I.11, Form I-862, DHS Notice to Appear; Exhibit I.12, Form I-200, DHS Warrant for Arrest of Alien] Ms. XXX entered the United States in route to a destination of New York, where she would be forced to work in a location ultimately to be chosen by her traffickers to pay a debt of $74,700. [Exhibit I.4, Declaration pp. 2-3 # 12, 15, 16] After discovery of Ms. XXX by CBP on October 7, 2008, Ms. XXX was placed in a shelter through Heartland Alliance/International Children’s Center. Ms. XXX was subsequently transferred from Heartland Alliance to Catholic Charities of Santa Clara County’s foster care program. [Exhibit I.13, ORR Notice of Transfer to ICE Chief Counsel Change of Address/Change of Venue] Legal Service for Children in San Francisco filed a Request for Assistance for Child Victims of Human Trafficking to the US Department of Health and Human Services, Administration for Children and Families, Office of Refugee Resettlement, Anti-Trafficking in Persons Division. Ms. XXX was determined by USDHHS to be eligible for assistance for child victims of severe form of human trafficking. [Exhibit I.14, Letter Dated July 27, 2009 from Department of Health & Human Services] Ms. XXX is physically present in the United States on account of a severe form of trafficking in persons. She continues to be in foster care through the Department of Health and Human Services and receiving assistance for child victims of human trafficking.

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EXTREME HARDSHIP INVOLVING UNUSUAL OR SEVERE HARM The RFE states that Ms. XXX must “submit evidence that [she] would suffer extreme hardship involving unusual and severe harm if [she] were removed from the United States. These factors include, but are not limited to; 1) [Her] age and personal circumstances; … 6) The likelihood of re-victimization and the need, ability, or willingness of foreign authorities to protect [her]; 7) The likelihood that the trafficker in persons or others acting on behalf of the trafficker in the foreign country would severely harm you….”

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Age and personal circumstances Ms. XXX is 17 years old. [Exhibit I.4, Declaration p. 1 # 2; Exhibit I.6, Birth Record of XXXX XXX with English Translation] She and her parents came into contact with her traffickers because Ms. XXX was attempting to leave China in order to avoid persecution for her religious beliefs. [Exhibit I.4, Declaration p. 2 # 11; Exhibit I.15, Declaration of Father] Because of their desperation and their poverty, Ms. XXX and her parents agreed to a disproportionate debt, which could only be paid by forcing Ms. XXX to work for extensive period of time under undisclosed terms and conditions of repayment. [Exhibit I.4, Declaration pp. 2-3 # 11-14; Exhibit I.15, Declaration of Father] Likelihood of Re-Victimization and Lack of Protection from Foreign Authorities Since Ms. XXX was discovered, her traffickers have visited her family’s home in China and have threatened them. [Exhibit I.4, Declaration p. 6 # 26-27; Exhibit I.15, Declaration of Father] The traffickers have threatened harm to Ms. XXX’s 12-year old brother in order compensate them for the payment of the debt that would have been paid through Ms. XXX’s labor. [Exhibit I.4, Declaration pp. 6-7 # 27; Exhibit I.15, Declaration of Father] If Ms. XXX were removed from the United States, her traffickers would re-victimize Ms. XXX in order to force her to work in payment of the debt.

As discussed above, Ms. XXX’s traffickers at each stage of her journey were armed. [Exhibit I.4, Declaration p. 5 # 22] The traffickers threatened, beat and sexually molested Ms. XXX. [Exhibit I.4, Declaration p. 6 # 24] Since her discover, the traffickers have gone to Ms. XXX’s family home to threaten Ms. XXX’s family. [Exhibit I.4, Declaration pp. 6-7 # 26 & 27; Exhibit I.15, Declaration of Father] The traffickers have threatened to harm Ms. XXX if they find her, as well as to harm Ms. XXX’s 12 year old brother. As demonstrated in the country condition reports previously submitted, the government of China is unlikely to protect Ms. XXX from her traffickers. (U.S. Department of State Human Rights Report 2008: China; U.S. Department of State Country Narratives Trafficking in Persons Report: China - previously submitted) Further, Ms. XXX was attempting to leave China because of persecution from government officials for her religious beliefs. [Exhibit I.4, Declaration p. 6

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Likelihood that Trafficker or Others Would Severely Harm Ms. XXX

# 26; Exhibit I.15, Declaration of Father] She would therefore not feel safe seeking protection from the government of China for threats from her traffickers. [Exhibit I.4, Declaration p. 6 # 26; Cover Letter previously submitted, p. 6] Thus, Ms. XXX would suffer extreme hardship involving unusual and severe harm if she were removed from the United States

CONCLUSION For all of the above reasons, Ms. XXX qualifies as a victim of severe form of trafficking in persons and is eligible for T nonimmigrant status. Her minor brother is also eligible for a T visa as her derivative. Thank you for your kind attention to this matter. Sincerely,

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LEE, Conxin – A#XXXXXXXX Response to NOA

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February 28, 2009 Vermont Service Center 75 Lower Welden Street St. Albans, VT 05479-0001 RE:

T VISA UNIT

Response to Notice of Action on Form I-797 T visa adjustment applicant Conxin LEE – A#XXXXXXXX Receipt #: EAC0XXXXXXXX

Dear Sir/Madam: I am writing in response to the Service’s Notice of Action (“NOA”) requesting additional information from my client, Ms. Conxin LEE (“Applicant”). The NOA, dated January 31, 2009, requests that Applicant submit the following: 1) Evidence of continuous physical presence from date of admission as a T nonimmigrant, June 10, 2003, to the present; 2) Evidence of good moral character; 3) Evidence of compliance with any reasonable request for assistance in an ongoing Federal, State or local investigation or prosecution of the act(s) of trafficking; 4) A copy of Applicant’s most recent passport; 5) A completed medical report on Form I-693; and 6) A completed Form G-325A.

Please find below the full list of responsive evidence that Applicant is attaching as exhibits for the Service’s review: 1) Evidence of continuous physical presence from date of admission as a T nonimmigrant, June 10, 2003, to the present Exhibit 1: Declaration of Conxin LEE Exhibit 2: (3) Birth certificates for Applicant’s three U.S.-born children

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Applicant has made good faith efforts to obtain evidence that satisfies the Service’s requests above. In any area where she was unable to procure official or formal documentation as suggested by the Service, Applicant is submitting a written and original affidavit made under penalty of perjury as directed by the Service. Applicant will continue her good faith efforts to obtain additional documentation and will submit such evidence to the Service at the earliest possible date.

Exhibit 3: Photographs of Applicant’s 3 children and of Applicant at California’s Disneyland Theme Park Exhibit 4: Women and Infant Children (WIC) Family Profile from the California WIC Information System showing dates of receipt of public benefits for Applicants’ children from July XX, 2004 through January XX, 2009 Exhibit 5: Notice of Action from the State of California Health & Welfare Agency dated May XX, 2003 approving Applicant’s application for state medical benefits Exhibit 6: Immunization Records for 2 of Applicant’s children showing dates of vaccination from October 5, 2004 through March 16, 2007 (YC LEE) and March 10, 2006 through June 26, 2007 (Wu, Charlie) Exhibit 7: Bank statements dating from November 21, 2005 through February 19, 2009 Exhibit 8: Copy of Applicant’s previously issued Employment Authorization Cards dating from June 200X to August 200X Exhibit 9: Copy of Applicant’s California Driver License issued on or around March 20XX and copy of Applicant’s Social Security Card Exhibit 10: Letter from Anne Wong, dated February XX, 2009, in support of Applicant’s Adjustment of Status application 2) Evidence of good moral character

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Exhibit 1: Declaration of Conxin LEE Exhibit 10: Letter from Anne Wong, dated February XX, 2009, in support of Applicant’s Adjustment of Status application Exhibit 11: State of California Department of Justice Criminal History/Background Clearance Report 3) Evidence of compliance with any reasonable request for assistance in an ongoing Federal, State or local investigation or prosecution of the act(s) of trafficking Exhibit 1: Declaration of Conxin LEE Pursuant to the Service’s request, Applicant, through her attorney, has requested a letter from the U.S. Department of Justice and the letter is supposed to be issued soon by John Doe, in charge of the issuance of such letters from the Department of Justice, Civil Rights Unit. I will submit it on

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behalf of Applicant as soon as I receive it from him. Please issue a second Notice of Action if needed for this document.

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4) A copy of Applicant’s most recent passport Exhibit 1: Declaration of Conxin LEE 5) A completed medical report on Form I-693 Exhibit 12: Form I-693; and 6) A completed Form G-325A Exhibit 13: Form G-325A Last, as Applicant states in her declaration (Exhibit 1), she is continuing to make good faith efforts to obtain a new Home Country passport from the consulate. I will submit it to the Service on her behalf as soon as she is able to obtain one. Should you have any questions, please do not hesitate to contact me at (415) XXX-XXXX. Thank you very much for your assistance. Sincerely,

Ivy Lee Attorney for Applicant Enclosures Cc: client, case file

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February 18, 2010

United States Citizenship and Immigration Services Vermont Service Center Attn: U Visa Unit, Box 1000 75 Lower Welden Street St. Albans, VT 05479 RE: MOTION TO REOPEN AND RECONSIDER Derivative Applicant: XXXXxxxx (aka XXXXX) File Numbers: Axxx xxx xxx EACxxxxxxxxxx [Principal Applicant: XXXXxxxxx File Numbers: Axxx xxx xxx EACxxxxxxxxxx] Dear Sir/Madame: The present motion is submitted in response to a Denial of a U-3 visa petition dated January 20, 2010. [Please see Exhibit A, Copy of Denial of U-3 Petition.] This letter brief is submitted with:

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1. 2. 3. 4.

Form I-290B Fee in the amount of $585.00, payable to USCIS Forms G-28 Supporting Documents A. Copy of Denial of a U-3 visa petition dated January 20, 2010 B. Copy Request for Further Evidence dated September 10, 2009 C. Copy of Form I-193 and supporting documents D. Copy of I-797A, U-1 Visa Approval Notice for Ms. Xxxx E. Copy of the Immigration and Nationality Act §212(a)(6)(A)(i) F. Copy of Response to Request for Further Evidence from September 10, 2009 G. Copy of the USPS track and confirm results for Response to September RFE

This letter brief and supporting documents are being submitted prior to the February 22, 2010 deadline, and are therefore timely submitted. The present Motion is being made on the grounds that “the request for … additional information … was complied with during the allotted period”, as well as that the denial is erroneous. USCIS issued an RFE in this matter dated September 10, 2009, and there appears to be some confusion regarding the two separate issues raised by this RFE. [Please see Exhibit B, Copy of Request for Further Evidence.]

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VALIDITY OF APPLICANT’S PASSPORT On February 24, 2009, USCIS issued an RFE in this matter requesting the personal data page of a valid passport for Ms. Xxxxx Xxxxx and Mr. Xxxxx Xxxxx. In the alternative, the RFE asked for Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. In response to that RFE requesting proof of a valid passport our office submitted Forms I-193, Waivers of Passport for Xxxxx Xxxxx and his mother, with supporting documents and fee waiver. [Please see Exhibit C, Copy of Form I-193 and supporting documents.] In that form and accompanying statement, Mr. Xxxxx and his mother explained that he attempted to renew his passport (valid from Apr. 6, 2000 to Apr. 6, 2006). The XXXXX Consulate stated that since his mother did not have her own passport to prove she is his legal guardian and since his father’s whereabouts are unknown, they could not renew Mr. Xxxxx’s passport. Ms. Xxxxx did not have a passport because INS had not returned her passport after termination of her removal hearing, in spite of requests made by counsel. Ms. Xxxxx’s Form I-193 was approved. [Please see Exhibit D, Form I-797A, U-1 Visa Approval Notice for Ms. Xxxxx.] Since Mr. Xxxxx’s passport validity rests on availability of his mother’s passport and USCIS has recognized that his mother is unable to renew her passport, the validity of Mr. Xxxxx’s passport should be addressed based on his Form I-193 and supporting documents. Current validity of passport is a separate issue from proof of legal entry to the United States.

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INADMISSIBILITY OF APPLICANT BASED ON INA § 212(a)(6)(A)(i) In the RFE dated September 10, 2009, USCIS stated it had no evidence of a legal entry in May of 1995, and therefore the applicant must submit an I-192 Waiver of Inadmissibility based on INA §212(a)(6)(A)(i). This RFE acknowledges receipt of Form I-193, but again requests Form I-192, Waiver of Inadmissibility based on INA §212(a)(6)(A)(i). Per INA §212(a)(6)(A)(i), “[a]n alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.” [Emphasis added.] [Please see Exhibit E, Copy of INA §212(a)(6)(A)(i).]

Based on the evidence provided, Xxxxx Xxxxx is not inadmissible under INA §212(a)(6)(A)(i). That his passport is no longer valid is a separate issue apart from the grounds of inadmissibility raised by USCIS. The United States Government admitted Xxxxx Xxxxx on June 24, 1995; therefore, the basis of the request for Form I-192 Waiver does not exist.

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In response to the RFE dated September 10, 2009, our office provided proof that our client Xxxxx Xxxxx entered the United States lawfully on June 24, 1995 on a B-2 Visa. [Please see Exhibit F, Cover Letter dated October 1, 2009, as well as attached stamped passport (valid from Jan. 15, 1994 to Jan. 15, 2000) and stamped I-94 card for Xxxxx Xxxxx.] In our letter dated October 1, 2009, our office noted that the I-918, Supplemental A incorrectly stated his date of entry as May 1995, and that his date of entry was in fact June 24, 1995, as demonstrated by the evidence submitted in response to the RFE.

TIMELY RESPONSE TO RFE Our office received the Denial dated January 20, 2010 stating that Mr. Xxxxx’s U visa was being denied for failure to respond to a Request for Further Evidence with a deadline of December 6, 2009. However, USCIS received our response on October 5, 2009, well in advance of the December 6, 2009 deadline. [Please see Exhibit G, USPS track and confirm results.] While our response did not include Form I-192, it did address the underlying issue of inadmissibility. Our office provided proof that our client is not inadmissible under INA §212(a)(6)(A)(i) because he entered lawfully on June 24, 1995, and therefore did not need to file Form I-192. We did not receive a response to this evidence submitted. In fact, we received no further communication from USCIS until we received the Denial of his petition. Based on the above, we respectfully request that USCIS reopen this matter and adjudicate Mr. Xxxxx’s U-3 visa petition based on his providing timely proof of lawful entry to the United States in response to the RFE dated September 10, 2009, and that he timely filed Form I-193 in response to the RFE dated February 24, 2009, noting that his passport had expired. We sincerely appreciate your assistance with this matter. Thank you in advance. Sincerely,

Xxxxx Xxxxx Law Student Volunteer Working under the Supervision of

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APPENDIX EE RESOURCES FOR VARIOUS FORMS OF IMMIGRATION LEGAL RELIEF

VAWA/U VISAS/T VISAS Evangeline Abriel and Sally Kinoshita, The VAWA Manual: Immigration Relief for Abused Immigrants, Immigrant Legal Resource Center. See http://www.ilrc.org/publications for a list of all available ILRC publications. SPECIAL IMMIGRANT JUVENILE STATUS ILRC Staff Attorneys, Special Immigrant Juvenile Status, Immigrant Legal Resource Center.

POLITICAL ASYLUM Robert Jobe and Larry Katzman, Winning Asylum Cases, Immigrant Legal Resource Center. Regina Germain, AILA’s Asylum Primer: A Practical Guide to U.S. Asylum Law and Procedure, American Immigration Lawyers Association.

CRIMES AND IMMIGRATION CONSEQUENCES

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Kramer, Mary K., Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants, American Immigration Lawyers Association.

NON-GOVERNMENTAL ORGANIZATIONS National Domestic Violence Hotline: 1-800-799-SAFE, 1-800-799-7233 or 1-800-787-3224 (TTY) Asian Pacific Islander Legal Outreach – San Francisco/Greater Bay Area– 415-567-6255 or see www.apilegaloutreach.org (contact person: Cindy Liou, Esq. and Robert Uy, Esq.) Katharine & George Alexander Community Law Center/Santa Clara University – 408-288-7030 or see http://law.scu.edu/kgaclc for more information Coalition to Abolish Slavery and Trafficking – Los Angeles, CA – 213-365-1906 or [email protected]

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Victims of Exploitation and Trafficking Assistance (VETA) Program – 703-538-2190 or www.bpsos.org

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The Polaris Project – www.polarisproject.org South Bay Coalition to End Human Trafficking – www.sbcteht.com

For a national list of all federal grantees that are funded to provide services specifically to human trafficking survivors, please visit www.acf.hhs.gov/trafficking or call the National Human Trafficking Resource Center at 888.3737.888.

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Copyright 2014 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

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INSTRUCTIONS FOR FINGERPRINTING OF FAMILY MEMBERS AT THE UNITED STATES EMBASSY/CONSULATE IN YOUR COUNTRY

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1. Your family member ___________________ has been sent a request to have their fingerprints taken at the United States Embassy/Consulate in ___________________. 2. The deadline for completing these fingerprints AND returning the fingerprint cards to the US Immigration is: _________________________ 3. PLEASE DO THE FOLLOWING AS SOON AS POSSIBLE: a. Please send this packet to your family member via an overnight service like DHL or FEDEX. b. Include these instructions with the packet. c. Your family member will need to take this packet to the U.S. Embassy or Consulate located at:__________________________________________________________ d. In addition to the packet, your relative should take an official identification document, such as a passport, national identity card, voter identification card, military identification card or driver’s license. e. At the U.S. Embassy or Consulate, you should provide the person at the counter your packet. If the person at the desk does not know what to do or says you need an appointment first, please ask to speak to the USCIS (Immigration) officer. That USCIS officer should understand the packet and the importance of meeting the deadline for returning the fingerprints to USCIS in Vermont. f.

OR Your relative can return the fingerprints and blue sheet via overnight services (DHL, FEDEX, etc.) to our office: (Your office address). It is important to note that if your family member chooses this option that they forward the documents as soon as possible so our office has time to forward them to Immigration in time to meet the deadline.

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Once your family member is fingerprinted, the Embassy or Consulate will do one of two things:  The Embassy or Consulate may want to send the fingerprints directly to USCIS/Vermont Service Center. Make sure the Embassy/Consulate has the blue sheet of paper to include with the fingerprints, so the fingerprints get to the right file.  The Embassy or Consulate may return the completed fingerprints to your family. Your family member can send the fingerprints and the blue paper directly by overnight service (DHL, FEDEX, etc.) to: USCIS, Vermont Service Center, 75 Lower Welden Street, St. Albans, VT 05479-0001

INSTRUCTIONS FOR FINGERPRINTING OF FAMILY MEMBERS AT THE UNITED STATES EMBASSY/CONSULATE IN YOUR COUNTRY 4. Your family member ___________________ has been sent a request to have their fingerprints taken at the United States Embassy/Consulate in ___________________. 5. The deadline for completing these fingerprints AND returning the fingerprint cards to the US Immigration is: _________________________ 6. PLEASE DO THE FOLLOWING AS SOON AS POSSIBLE: g. Please send this packet to your family member via an overnight service like DHL or FEDEX. h. Include these instructions with the packet. i.

Your family member will need to take this packet to the U.S. Embassy or Consulate located at:__________________________________________________________

j.

In addition to the packet, your relative should take an official identification document, such as a passport, national identity card, voter identification card, military identification card or driver’s license.

k. At the U.S. Embassy or Consulate, you should provide the person at the counter your packet. If the person at the desk does not know what to do or says you need an appointment first, please ask to speak to the USCIS (Immigration) officer. That USCIS officer should understand the packet and the importance of meeting the deadline for returning the fingerprints to USCIS in Vermont.

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l.

OR

Once your family member is fingerprinted, the Embassy or Consulate will do one of two things:  The Embassy or Consulate may want to send the fingerprints directly to USCIS/Vermont Service Center. Make sure the Embassy/Consulate has the blue sheet of paper to include with the fingerprints, so the fingerprints get to the right file.  The Embassy or Consulate may return the completed fingerprints to your family. Your family member can send the fingerprints and the blue paper directly by overnight service (DHL, FEDEX, etc.) to: USCIS, Vermont Service Center, 75 Lower Welden Street, St. Albans, VT 05479-0001 Your relative can return the fingerprints and blue sheet via overnight services (DHL, FEDEX, etc.) to our office: KGACLC/SCU attn.: Lynette Parker, 1030 The Alameda, San Jose, CA 95126. It is important to note that if your family member chooses this option that they forward the documents as soon as possible so our office has time to forward them to Immigration in time to meet the deadline.

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INSTRUCCIONES PARA OBTENER LAS HUELLAS DIGITALES DE SUS FAMILIARES EN LA EMBAJADA NORTEAMERICANA O EL CONSULADO DE SU PAIS.

Es muy importante que sepa que si su familiar decide esta opción, su familiar tiene que enviar el paquete lo mas pronto posible para que de esta manera nuestra oficina tenga tiempo suficiente para enviarlos al servicio de inmigración dentro del tiempo limite.

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1. Su familiar ___________________ ha sido citado a obtener sus huellas digitales en la Embajada Norteamericana de ___________________. 2. La fecha límite para completar y obtener las huellas digitales Y regresar los tarjetones dactilares al Servicio de Inmigración de los Estados Unidos es: __________________________. 3. POR FAVOR, SIGA ESTAS INSTRUCCIONES, LO MAS PRONTO POSIBLE: a. Por favor envíe este paquete a su familiar a través de servicio de paquetería nocturno DHL o FEDEX. b. Incluya estas instrucciones junto al paquete. c. Su familiar necesitara llevar este paquete a la Embajada Norteamericana o Consulado localizado en:___________________________________________ d. Además de este paquete, su familiar debe llevar una identificación oficial, tal come el pasaporte, tarjeta de identidad nacional, tarjeta de registro electoral, tarjeta o cartilla militar o licencia de conducir. e. Una vez que llegue a la Embajada Norteamericana o el Consulado, su familiar deberá presentar todos los documentos cuando le sea requerido. Si la persona en el foro de información no sabe que hacer, o le dice que necesita hacer una cita primero, por favor pida hablar con un oficial de inmigración (USCIS). El oficial de inmigración sabrá que hacer con el paquete y la importancia de completar las huellas digitales y regresar todo el paquete a inmigración en Estados Unidos antes de la fecha limite. f. Una vez que hayan obtenido las huellas digitales de su familiar, la Embajada hará una de estas dos cosas:  La Embajada o Consulado decidirá enviar el paquete de regreso directamente al Centro de Servicio de Vermont, USA. Si esto pasa asegúrese que la Embajada/Consulado tiene la hoja de papel azul para que la incluyan junto a las huellas digitales y así los tarjetones dactilares lleguen correctamente a su destino final.  La Embajada o Consulado pudiese regresar los tarjetones dactilares a su familiar. Si esto pasa, su familiar puede enviarlos junto con la hoja de papel azul directamente, y por servicio rápido (DHL, FEDEX, etc.) a esta dirección: USCIS, Vermont Service Center, 75 Lower Welden Street, St. Albans, VT 05479-0001  Su familiar puede regresar los tarjetones dactilares y la hoja azul por servicio rápido nocturno (DHL, FEDEX, etc.) a nuestra oficina: Su domicilio.

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INSTRUCCIONES PARA OBTENER LAS HUELLAS DIGITALES DE SUS FAMILIARES EN LA EMBAJADA NORTEAMERICANA O EL CONSULADO DE SU PAIS. 4. Su familiar ___________________ ha sido citado a obtener sus huellas digitales en la Embajada Norteamericana de ___________________. 5. La fecha límite para completar y obtener las huellas digitales Y regresar los tarjetones dactilares al Servicio de Inmigración de los Estados Unidos es: _______________________. 6. POR FAVOR, SIGA ESTAS INSTRUCCIONES, LO MAS PRONTO POSIBLE: g. Por favor envíe este paquete a su familiar a través de servicio de paquetería nocturno DHL o FEDEX. h. Incluya estas instrucciones junto al paquete. i. Su familiar necesitara llevar este paquete a la Embajada Norteamericana o Consulado localizado en:___________________________________________ j. Además de este paquete, su familiar debe llevar una identificación oficial, tal come el pasaporte, tarjeta de identidad nacional, tarjeta de registro electoral, tarjeta o cartilla militar o licencia de conducir. k. Una vez que llegue a la Embajada Norteamericana o el Consulado, su familiar deberá presentar todos los documentos cuando le sea requerido. Si la persona en el foro de información no sabe que hacer, o le dice que necesita hacer una cita primero, por favor pida hablar con un oficial de inmigración (USCIS). El oficial de inmigración sabrá que hacer con el paquete y la importancia de completar las huellas digitales y regresar todo el paquete a inmigración en Estados Unidos antes de la fecha limite. l. Una vez que hayan obtenido las huellas digitales de su familiar, la Embajada hará una de estas dos cosas:  La Embajada o Consulado decidirá enviar el paquete de regreso directamente al Centro de Servicio de Vermont, USA. Si esto pasa asegúrese que la Embajada/Consulado tiene la hoja de papel azul para que la incluyan junto a las huellas digitales y así los tarjetones dactilares lleguen correctamente a su destino final.  La Embajada o Consulado pudiese regresar los tarjetones dactilares a su familiar. Si esto pasa, su familiar puede enviarlos junto con la hoja de papel azul directamente, y por servicio rápido (DHL, FEDEX, etc.) a esta dirección: USCIS, Vermont Service Center, 75 Lower Welden Street, St. Albans, VT 05479-0001  Su familiar puede regresar los tarjetones dactilares y la hoja azul por servicio rápido nocturno (DHL, FEDEX, etc.) a nuestra oficina: KGACLC/SCU attn.: Lynette Parker, 1030 The Alameda San Jose, CA 95126. Es muy importante que sepa que si su familiar decide esta opción, su familiar tiene que enviar el paquete lo mas pronto posible para que de esta manera nuestra oficina tenga tiempo suficiente para enviarlos al servicio de inmigración dentro del tiempo limite.

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INTERPRETER CONFIDENTIALITY AGREEMENT

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I, _______________________, as an interpreter, will be permitted to have access to client information in order to perform interpretation and translation work related to ___________________, a client(s) of Asian Pacific Islander Legal Outreach (“APILO”). I certify that I discussed that I do not have any conflicts of interests with the identified parties of this case. I agree to keep all information that I learn about the client confidential and that my work is entirely in purview of legal work done for the client, and therefore subject to similar work-product and attorney-client privileges.

I understand that I have the same

responsibility to keep all information confidential and privileged to the best of my ability. I understand that I may not discuss or disclose any information related to any client to anyone besides his legal representatives. I further understand that I may learn personal information about a client and/or his or her family that is private. I understand that it is my duty and responsibility to preserve and protect this privacy and confidentiality. I understand that I am not a case manager for this client and I am not to provide social services outside the purview of an interpreter solely for the purposes of legal work for the client. I understand that this duty will extend after I am no longer working for APILO. Both state and federal laws protect the confidentiality of clients. By placing my signature below, I hereby indicate that I understand and agree to maintain the privacy of the client(s)’ case-related and personal information.

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___________________________ Interpreter’s Signature

___________________________ Date

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Re: 

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Cooperation Agreement for Common Interest of Clients 

  Dear Ms. Liou:                As you know, we are representing XXXXXXX during the EEOC conciliation process.  I  understand that you represent XXXXXXXX in a matter concerning immigration.  I am writing to  confirm our understanding that because our clients share a common interest, any discussions  we have or confidential information we share with each other or other lawyers or legal staff  from the Legal Aid Society – Employment Law Center and Asian Pacific Islander Legal Outreach  concerning XXXXXXXX are not intended to, and shall not, waive or diminish in any way the  confidentiality of such discussions or information or their continued protection under the  attorney‐client privilege, the work product doctrine, or other applicable privileges or protections  as against third parties.  In order to protect confidential information under the common interest  doctrine, Legal Aid Society – Employment Law Center and Asian Pacific Islander Legal Outreach  will only share information related to the common interest of clients and that is reasonably  necessary for the purpose for which they are consulting.  Legal Aid Society – Employment Law  Center and Asian Pacific Islander Legal Outreach will keep information confidential.   

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            Both you and we will convey to XXXXXXXX that in order to protect the attorney‐client  relationship in both their individual immigration cases as well the as EEOC process, all  communications between her lawyers or legal staff from Legal Aid Society – Employment Law  Center and Asian Pacific Islander Legal Outreach will be confidential and any information gained  by any of the above‐mentioned lawyers or legal staff will not be shared outside of Legal Aid  Society – Employment Law Center and Asian Pacific Islander Legal Outreach.  Both Legal Aid  Society – Employment Law Center and Asian Pacific Islander Legal Outreach will advise XXXXXXX  to keep exchanged information confidential as well.    __________________________  

 

 

___________________ 

[ATTORNEY NAME] 

 

 

date 

 

 

Legal Aid Society – Employment Law Center 

 

 

  _________________________   

 

 

____________________ 

Cindy Liou 

 

 

date 

 

 

 

Asian Pacific Islander Legal Outreach 

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Attorney of the Day Service  ILRC Technical Assistance  Since 1979, the ILRC has provided a unique, nationwide consultation service called  Attorney of the Day (AOD), in which your immigration case questions are answered by  our expert staff attorneys.  We offer consultations on several aspects of immigration law  to attorneys, employees of nonprofit organizations, public defenders, and other  practitioners that assist immigrants.    There are two options available:   

Contract Service  This option allows you to secure an on‐going contract with us for a lower rate than the  one‐time consultation fee.  You can create an individual or group contract so that  members of your organization have access to this service.  To begin the process, we  obtain a signed contract and collect an initial deposit.  Each time you contact us with a  question, we will deduct the pro‐rated charge from this deposit.  You will be billed when  your account falls below $50.   

One‐Time Consultation   This option allows you to ask questions on a one‐time basis.  Payment must be made by  VISA, MasterCard, or American Express.  Please have your credit card information handy  when you contact us.  There is a minimum charge of 1/10 hour.  All charges will be  prorated.    AOD consultation hours are Monday through Thursday between 10:00 am and 3:00 pm  Pacific time.  Inquiries will be answered within two business days, excluding Fridays.   Questions can be sent to [email protected].    For more information, please visit www.ilrc.org or call 415‐255‐9499.   

 

Reprint Permissions  To reprint any of the information contained in an ILRC publication, please see our  Reprint Permissions Policy available on our website at:    http://www.ilrc.org/publications/reprint‐permissions    The following are guidelines for ILRC materials to appear in printed or electronic*  format:    All materials produced or published by the ILRC are protected by copyright.  By  submitting a request form, you agree to abide by our copyright restrictions and  requirements.    *For access to ILRC materials on intranets or public websites, ILRC will only allow for  hyperlinking to the electronic materials already available on ILRC’s website, and grantee  will specifically state that the ILRC material is available only for internal use and not for  commercial use or mass distribution.    For materials to appear in printed, electronic, or audio format, you may be granted a  one‐time usage license to copy and distribute the materials.  You may not modify,  delete or add any text, images or audio to the materials without express permission  from the ILRC.  All materials must be copied or distributed in whole, not in part.  If the  materials are to appear within another medium, or as a shortened version of the  original, ILRC must review the particular usage before it can grant permission.    All materials must be used in conjunction with the following credit line: Reprinted from  [insert name of the original material] with permission of the Immigrant Legal Resource  Center, San Francisco, CA, 415‐255‐9499; www.ilrc.org.   

 

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ESSENTIAL ILRC PUBLICATIONS

The U Visa: Obtaining Status for Immigrant Victims of Crime This manual will guide you through the entire process of handling an immigration case for a U nonimmigrant applicant—from eligibility screening through adjustment of status to assisting eligible family members. In addition to providing a thorough explanation of the requirements and process, it includes numerous sample materials to help you in handling your client’s case, such as immigration forms you will need, sample checklists, declarations, receipt notices and other correspondence you can expect to receive from USCIS, motions to submit to the immigration court, and more. The VAWA Manual This comprehensive manual includes information for advocates working with immigrant survivors of domestic violence. Consisting of thirteen chapters, this guide provides in-depth information on VAWA self-petitioning requirements and procedures, adjustment of status, inadmissibility grounds and waivers, removal proceedings and motions to reopen, VAWA cancellation of removal, conditional permanent residency, U nonimmigrant status for victims of crime, consular processing, and more. Essentials of Asylum Law The second edition of this comprehensive survey of the basic elements of asylum law now includes a thorough overview of asylum procedure, complete with practice tips for preparing and presenting an asylum claim. This publication is intended for advocates who want to understand the law and are new to representing asylum clients, as well as for seasoned practitioners needing a thorough review of current standards. Special Immigrant Juvenile Status In addition to having a special focus on Special Immigrant Juvenile Status, this manual also provides information on other immigration options for children and youth including: U Nonimmigrant Status, Violence Against Women Act protection, asylum, family-based immigration options, citizenship, and others. It also addresses specialized issues, such as working and representing child clients, immigration consequences of delinquency, and detention. The manual contains many useful items for practitioners, including sample screening intake and application forms, motions, court orders, and other papers that can be presented to the juvenile court, immigration court, and immigration authorities. To receive information on new publications: Sign up for our Education Listserve at www.ilrc.org/ilrc-email-lists/subscribe-orunsubscribe