Curbing Human Trafficking and Protecting Its Victims

Human trafficking is illegal. The 13th Amendment to the U.S. Constitution (1865) provides that “neither slavery nor involuntary servitude (except as punishment for a duly convicted crime) shall exist within the United States or any place subject to their jurisdiction.” Today, trafficking of humans is believed to occur in every continent, and it is believed that more people are enslaved now than at any other time in human history.

“Human Trafficking” and “Smuggling”

Unlike smuggling, which is an offense against the integrity of U.S. borders, in which the person being smuggled cooperates in violating the law, human trafficking is an offense against a person, in which the trafficked persons are victims. Trafficking does not require movement; rather it involves compelled labor or service through force, fraud, or coercion.

Smuggling is transportation-based; smugglers typically make their money once the alien has reached the U.S. border, at which point their “business relationship” with the immigrant then terminates. Trafficking is exploitation-based; traffickers maintain ongoing control over victims, even after the border is crossed. The nexus between smuggling and trafficking is that traffickers may use smuggling debt as a means to control victims.

The supply of victims for traffickers is seemingly endless. The global economy provides a constant source of victims, typically recruited—not by force, but by the promise of a better life, and especially the American Dream. Unlike drugs or arms smuggling, with international human trafficking, exploitation continues past the point of sale. Smuggled drugs are a commodity, that is consumed, but victims of human trafficking can be used over and over again, by the same perpetrator or by other perpetrators. Paradoxically, many leaders of human trafficking are women, some former victims themselves.

Human trafficking can be very difficult to stop. Human trafficking is fueled by economically desperate victims and market demands for cheap labor. Human trafficking will often exist where there are labor-intensive industries. Human trafficking flourishes when end users can purchase slave labor without fear of legal consequences. Effective intervention/prevention requires proactive cooperation between law enforcement and communities, especially with service providers in those communities.

Trafficking Victims Protection Act of 2000 (TVPA)

The Trafficking Victims Protection Act (TVPA) of 2000 (Pub. L. No. 106-386) covers acts involved in recruitment, abduction, transport, harboring, transfer, sale, or receipt of persons through force, fraud, or coercion for forced labor or commercial sex acts against a person’s will. It strengthens sentencing guidelines, increases sentences ranges, and adds life imprisonment for death, kidnapping, or aggravated sexual abuse of a victim.

Force may be defined as physical violence that may take the form of beatings, rape, shootings, or physical confinement. Importantly, physical force is not a required element to prove that someone has been enslaved. A showing of psychological coercion suffices. Fraud can include false or deceptive offers of employment, marriage, or a better life. Coercion can include threats of serious harm to the victim, the victim’s family or another person, the confiscation of the victim’s documents or the abuse or threatened abuse of the legal system, such as a threat of deportation.

Commercial sex act means any sex act on account of which anything of value is given to or received by any person. When a minor (a person under the age of 18) is trafficked for a commercial sex act, there is no need to prove force, fraud, or coercion.

The TVPA is a victim-centered law. Trafficking victims, even if they are in the United States illegally or entered the United States illegally, are to be viewed as victims of crime. The fact that a person consented to being smuggled into the United States illegally does not preclude that person from being considered a trafficking victim. The fact that a victim may have initially consented to perform an illegal act is not a defense to the subsequent use of force, fraud, or coercion.

Victims are often “invisible.” Many are illegal and fear U.S. authorities; and traffickers often exploit this fear. Victims may be physically isolated or guarded; others are held through psychological coercion. Many victims do not speak English. Many victims have no idea where they are in the United States and face tremendous cultural barriers. Many do not realize they are victims or that they have rights under U.S. law.

Immigration Remedies Under the TVPA

The TVPA created programs to assist human trafficking victims, including immigration remedies for those who are in the United States illegally or entered the United States illegally. Benefits afforded to refugees are given to human trafficking victims who are willing to assist in the prosecution of their traffickers. “Continued Presence,” generally for one year, is a federal law enforcement tool that provides temporary victim relief while a case is being investigated and prosecuted. Continued Presence provides lawful immigration status and eligibility for work authorization during that year. After Continued Presence, a victim can receive a “T Visa” or a “U Visa.” A trafficking victim generally would receive a T Visa after Continued Presence.

A T Visa provides relief that can lead to permanent residence. It provides legal status and eligibility for work authorization. A victim can apply for permanent residence after three years of being issued a T Visa. According to the statute, the requirements for obtaining a T Visa are that a person must be victim of a severe form of trafficking and demonstrate that they will face extreme and unusual hardship if returned to their native country. A T Visa is self-petitioning: the victim must initiate the application and must be physically present in the United States to do so. The victim must have complied with any reasonable request to assist law enforcement (not a requirement for minors under the age of 18).

U Visas are available for victims of qualifying criminal activity when the victim was helpful, is helpful, or is likely to be helpful to law enforcement in the investigation or prosecution of the crime. Examples of qualifying criminal activity include human trafficking, domestic violence, kidnapping, and sexual assault. Smuggling is not included. Law enforcement certification is required. U Visas may be an eventual path to permanent residence.

Federal Forfeiture Under the TVPA

Another tool for federal prosecutors is federal forfeiture. The United States can pursue forfeiture of property bought by human traffickers using proceeds of the human traffickers’ criminal activity. The United States can pursue forfeiture of property used to facilitate the criminal activity. There is also the possibility of equitable sharing of forfeiture proceeds with state and local law enforcement partners. The primary goal is always to forfeit the human traffickers’ ill gotten gains and use the proceeds of the forfeiture to help the victims.

Cases—“Just the Facts, Ma’am”

Some examples of cases prosecuted in the Southern District of Texas follow.

In the Mondragon case, eight defendants recruited and smuggled Central American women promising them that they would have jobs as waitresses. Instead, they were made to work as bar girls. The women reported earnings of up to $600 a week, but they received only $500 a week after paying assessments on their smuggling debt. The women were maintained by threats of violence and some were sexually abused. Over 100 victims were rescued and provided TVPA assistance. United States v. Maximino Mondragon, No. H-05-468

In the Gerardo Salazar case (Gerardo Salazar is also known as “El Gallo”), an indictment returned in 2005 alleged six defendants lured young Mexican girls into the United States under false pretenses by romancing them. The indictment further alleged the girls were forced into prostitution by physical violence and threats, deprived of their earnings, and not permitted to talk to one another. The victims were rescued after one victim called a hotline. Five defendants entered pleas of guilty and were sentenced. El Gallo fled to Mexico but was extradited to the United States in June 2014 after Mexican authorities arrested him. He is awaiting trial in April 2015. United States v. Gerardo Salazar aka “El Gallo,” No. H-05-371.

In the investigation and prosecution of the Maria Rojas aka “Nancy” case, 10 defendants were indicted in February 2011 for their roles in a human trafficking organization. All defendants were convicted and forfeitures of about $500,000 from 10 forfeited properties will be used for the victims’ psychological, medical, and educational needs. United States v. Maria Rojas aka “Nancy,” No. H-11-116

In the Tencha case, an original indictment was returned in October 2013. In all, 16 defendants have been indicted for their roles in a human trafficking enterprise. Thirteen defendants have entered pleas of guilty for their roles in the human trafficking organization. There are two fugitives, and one defendant is set for trial in April 2015. The United States is seeking to forfeit 13 real properties worth about $1.3 million with the goal of using the proceeds to help the victims. United States v. Hortencia Medeles-Arguello aka “Raquel Medeles Garcia” aka “Tencha,” No. H-13-628.

Difficulties in Prosecution

Foremost among many hurdles to overcome in the prosecution of human trafficking is the reluctance on the part of witnesses and victims to come forward for fear of retribution to themselves and family members in their native country. Frequently, the human traffickers have immigration status in the United States and come and go as they please. Human traffickers thus have access to the victim’s family back home. Victims often fear law enforcement, based on experiences in their native country, and thus often do not come forward with their story until U.S. law enforcement has gained their trust. For case histories, see the award-winning article by Sherri L. Zack & Ruben R. Perez, Challenges in Federal Sex Trafficking Prosecution, Hous. Law., Sept./Oct. 2012, at 18.

What Can We Do? Human Trafficking Rescue Alliances

The solution to penetrating this hidden crime is cooperation among law enforcement agencies; cooperation with nongovernmental organizations; looking beneath the surface to rescue and restore; and preventing, protecting, and prosecuting.

To combat human trafficking in the Southern District of Texas, in August 2004 the United States Attorney’s Office formed the Human Trafficking Rescue Alliance (HTRA). The HTRA is a collaboration of local, state, and federal law enforcement agencies working together with area social service organizations to identify and assist the victims of human trafficking and to effectively identify, apprehend, and prosecute those engaged in trafficking offenses.

What Can We Do in Our Communities?

Should you observe any activity that may appear suspicious, please do not hesitate to report a Human Trafficking Tip to the National Human Trafficking Resource Center Hotline at 1-888-3737-888.