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    66 views9 pages

    DOJ OLA Memo Sensenbrenner

    Uploaded by

    kvalenti

    Copyright:

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    + Febei2-04 07:64am Fro Toto P.oor/009 FAs “U.S, Department of Justice : + +. = Office of Legislative Affairs fe of Assen avery Ceo Wasting D708 September 24, 2003 “The Honorable P. Jumes Sensenbrenner, It ‘Chairmen ‘Comunitter on the Judiciary USS. Houte of Representatives ‘Washington, DC 20515 ‘Dear Mr. Chairman: programs, which i aed at strengthening our efforts vo combat traficking it Persons. However, ee P eve veveral concerns abut the ill, particulmly the way it would alter the current sonatory aoa for cerufying ipffcking victims ax ciple to receive benefits and services, the need for sentdondality provisions in visa applications, and» new private right of action provision, 10 carton. we eommend adding the new vatficking crime as RICO predicates end providing for the death penally in human trafficking cases where the death of a vietim results Subsection 3(a): Border Interdiction Subsection 3(2) would amend section 106 of the Trafficking Victims Protection Act of ‘2000 (°TVPA"), Pub. L. 106-386, Div. A, to require the President to make grants 10 ‘non-governmental organizations ("NGOs") to fond training for tacking survivors who, 8 tam, would “educate and train border guards and officials, ‘and other jocal law enforcement officials. . “"S" gpecfically, this subsocsion would exublih grants to monitor “the implementation of Porder inuerdieion programs, including helping in the identification of such victims...” ‘While we support training barder and loca) officals in the identification of trafficking sictimas, we believe that subsection 3(a) it unnecessary and would potentially undermine the Serene er fonctions. The TVPA mandated training fos border officials and other Federal law enforcement officers on the identification of and assistance to trafficking victims, and the U.S. SBEEMLSZOZ KYd PO LL CUOL/ST/EO Fob I2-04O7:Stan Fron : Teta .cge/o08 Government carries it out." ‘While NGOs’ have an important role to play in helping unfficking victims, it remains ‘nonetheless the purview of Federal law enforcement, while carrying out their Taw enforcement duties, to identify vietims atthe berder. In addition, we do not believe that monitoring border mesdiction programs is the most effective use of Pederal funding, Because itis not always clear who at the border is a" cera” az a victim must be destined for an exploitative labor OF ‘commercial sexba) situation in Vit fo been “trafficked,” the money appropined for Imerdicon POPES ‘would be besier spent enhancing our official Border conta efforts and fnereasing ous ability to investigate and ‘prosecute human trafficking. ‘The provision does ‘not clarify to what extent NGOs would monitor | these programs Of what autborty NGOs would have to attempt to influcce these ProBreS, “The lack of specificity makes it unclear as to how these functions would implicate the exercise of Federal law enforcement ‘authority by civilians ‘and/or local lew enforcement officials. Additionally, it is not clear whether training will be provided to such organizations, ‘and whether principles such as agency law and vicarious liability will apply 10 any’ functions performed by ‘such organizations or Jocel Jaw enforcement. ‘We nove that use ofthe term transit sheer” implies that the victims 3 passing through the United States temporarily ‘and will be returning to their countries of origin. ‘This has not been the U.S. Government's experience with the majority of wafficking Victims who have been identified. Most of them choose to access immigration relicf ‘available under the TVPA, rather than self-repatriation. Congress chooses to proceed with hi provision despite our oppasitons £& suggest amending the section on border interdiction by insersing Un the Bil following the first arnending ne oe word “inerellcion” inthe fet sendence)“, nchwding hereby authorizing support to NGO programs, while not strictly limiting eh Programs solely to NGOs. Subsection 3() also would “ensure thet any rogram established under (his subsection provides the opponuniy for any waffcking victim who is freed fo mE his or her previous aa ies it tne victim so chooses.” Guarantecing immediate rerum could undermine law aecaes on needs, which often will require the presence of the victim in the coun 0 afore ttees or for eter purpos. Inthe event the Commie retains ini subsection, We urge that it contain a mechanism fo ensure that the interests of law enforcement be protected in any provision forthe rum of trfficking victims to thelr own or third countries. —_——_——_—- ‘The Departments of State and Tastes amticulated their plans for U.S. Government anti- satacag rng ‘responsibilities in the Federal Register. See 66 FedReg. 38514 Guly 24, Foes oroveco® wrwune @n0 © vrosroo BEGEPLSZOZ AVS 70 LL COURIST/EU + Fabrl2-04 07:54am Fi b 0 Pros Ter4o P oua/009 F648 ‘Subsection 3(b): Termination of Certain Grents, Contracts and Cooperative Agreements ‘The Staie Department will be wubaiuing a separate views letter on LR. 2620, in which it will address concems regarding subsection ‘3(b). We simply note that we defer to, and concur in, the State Department's position. ‘Subsections A(s)(3) and 4(b)1}(0): State and Local Lew Enforcement ‘Subsection 4(0X(3) would broaden the availability of cenfication of afficking vicimns {as would setion 4(e)(1}(a) in silar ways} by permitting individuals to bain certification as rericking victims based on endorsements made by State and local aw enforsemnere agencies (in ‘addition to Federal law enforcement). We have reservations about altering the current ‘statutory Srandard for the certfication of victims to receive benefits and services. nour experience, accurate certification requres some investigation to determine whether the vita actully has rere asthe rest of conduct chat saliafies the elemens of the VPA. “Ths inwostigtin is best performed by trained investigators who are familiar with 1s ‘TVPA. Grasp: he Attaraey General js contulied on whether awafficking vsti is ssising in an investigation or prosecution of humen trafficking and a Federal law enforcement agency is in ‘Sarge ofthe investigation and prosecution, We are concerned that State and loca) ‘agencies may Par sures or experi fo conduct the necessary inquiry. Only ro States (W sshingion aaa aces) have posted anu-rafficking laws, Hence, the vast majority of Stale and local aw aor reamaal officials donot have the Jexindlcuon to favestgate human traficking, It is uncl=ar cenciner State and jocal officials could determine that vietims were cooperating with the {avestigaion or prosecution of human trafficking, because the investigation would pst likely be Foden. Purtor confusion may tise due to overlapping jurisdiction in casts in which Sate and roca apicils could be investigating activity that might constitute human waficking under the dena definition but that under Stale law would violate only non-trafficking lows, such as Kidnaping- . ‘We do not believe that these changes would result in substantial benefit in enforcing the am-traltcing laws, Moreover, we are concerned about forcing the Deparament of feath and ‘Human Services, when certifying trafficking victims, (0 ‘zeconcile possibly conflicting factual ‘Conclusions made by vasious Federal, State and local Jaw enforcement authoriues. Por sa inalvideal might be cooperating with local law enforcement in a human trafficking Feder) prosecutors, who are iavertigating the underlying activities, might The victim does not meet the definition of a victim of a “severe form of trafficking in persang” the statutory standard for receipt of benefits. We note thatthe bill would seit ine endorsements to Federal law enforcement is more efficient and ensures uniformity in determining whether vietims are cooperating with (ihe likely) Federal investigation or oporvo0 wawune aMo © vosroo paseriseoz vs ve Lt cust/se/es Febel2-06 OT :Slan Fr or Tudo P coa/e0g Fete prosecution, Congress may be looking tothe Batered Snumigrant Women Protection 1 of 2000, 51512 (ogerdng the U visa), Pub. L, 106-386, Div. B. Tit. V, as s mode! for allowing Federal, 1 ree alto determine victimization and cooperation, Unlike that Art, whete crimes ae aoeatery are also crimes atthe Stato level, enforcement against human trafficking ‘emntins predominantly a Federal sphere of activity. In many cased, it may be ates fos State and remlns Petnecment a idenify were that ls violates Stace law than it would be to identify sat wafficking, ‘Therefore, we do not believe the U visa to be an malogous situation or 2 ‘valid model to follow in trafficking cases. ‘We also are wary that this subsection would ercate the potential for foram shopping. We stready are aware of persons who claim tobe victims contacting multiple Federal agencies in the of the key criteria for certification tothe 17,000 State and local aw enforcement agencies in the Country will exacerbate tis situation. Under current law, Federal law enforcement analyzes Claims of victimizalion ind cooperation with law enforcement and ensures that certification is requested for leptirote, cooperating victims, 20 that such victims can receive the benefits ‘mandated by the TVPA. We believe this provision would cause confusion and potentially place Feder) Ja enforcement against State and local lav enforcement n determinations egarding cooperation in what is likely to be x Poderal preserve. Subsection 4(a)(4): Private Right of Action ‘The Deparment of Justice oppose the private right of action that would be established by evbsection a(a(4), because itis unnocessary and caud be accomplished by amending the Pecketeer Influenced and Corrupt Organizations (RICO) Act (18 U.S.C. §§ 1589 - 1594). Creation of a pri ite right of action is a complex undertaking that should be approached only after earefl consideration of collateral consequences and the appropriate stand for cat ching a civil violation. Tis common for civil rights violations to give rise to both civil anc caraeal meetions. While these arrangements have produced some complexity in criminal provecntons, Congres has concluded thatthe addtional enforcement activity resuising om Frivme civil actions js worthwhile, However, many such sunutory schemes establish Gifferent Pitmueats for eivil and criminal violations, If Congress believes theta civil action for human trafficking might be appropriate t should consider in depth the conduct that should tigger @ {Gil violation and the processes that would be helpful in protecting criminal enforcement. ‘We note that the amendment to the RICO Act included in HLR. 2620 would allow civil RICO claims for human trafficking, which may cover the universe of clvil proceedings Congress crorso0® wrnune BHO ~ vio/roa Beertszez xVs $0 14 Coor/st/eU + Fabe12-0407:84an Fro 1240 P.0us/oa8 is intending to extend 10 trafficking victims. “The creation of a federal civil remedy, one that would include treble damages. best accomplished through the amendment to RICO. If the purpose is fo establish anew Federal tort, wwe question the need for it. ‘The entire range of trafficking bebaviors is already captured under State tort law, under which a victim may slready recover. "We do not see a need 10 recreate such a scheme atthe Peder level. Congress concludes that a private right of action beyond RICO 's warranted in these circurastances, we suggest severa) im to this subsection. The subsection docs not carters who can be sbed. For example, the class of defendants nocd to be defined. Foreign governments wih lx border enforcement poicics could be caled inte cor, under the provision, aoary anyone inked othe tafSicking. Even prosecutors could face a civil sit if a mafficking 2c ved thatthe prosecutor didnot pursue the tefficking prosecution with sufficient Gligence. Presumably tho traffickers who knew (or ought to have known) about the victim's plight would be the intended clans of defendants. “The subsection should stay ull ponding eivil actions in the wake riminal prosecution. Notably, in he context of 18 USC § 2255 ("civil remedy for personal injuries”), all civil actions are stayed pending the completion of a criminal action. See also 1B USC § 3509(k) ("child victims” and child witneseos’ rights”) ("If a any ‘time that a cause of action for recovery of compensation for damage or injury to...» child exist, ‘criminal action is pending which arises commer the same occurrence and in which the child is the viet the civil action shall be stayed ‘until the end of all phases of the criminal action. . ..")- Without delineating who cam be sued and whether the suit would be stayed until a prosecution was complete this provision ‘would provide unbsidled discretion to wafficking try a ease unfenred by the camplicaions of civil discovery. While pezhaps unlikely, this provision could become an ineeatve for victims to skip cimins! ‘prosecution and go directly 10 Pent court to sue ther traffickers for damages. We believe that prosecutions should take bart over Se nd thal prosecutions should be complcte peor ta going forward with civil suits. Subsection 4(c): Walver of Public Charge Ground for Inadmissibility Iie notelear what benefits would acrue from the amendments subsection 4(©) would make to § 214(n) of the Immigration und Nationality Act (INA) to disallow consideration of the “publie charge” grounds Cor inadmlssibility tothe United States basod of approved T visa. TRE TVPA allows the Aniorney General (now te Secretary of Homeland Secu) 12 6 ‘waivers generously forthe public charge grounds of inadmissibilty unde § 212(d) of the INA waiver Serr eanive tha tbe public charge activity be linked tothe uafficking vicrimizaion G@sit a whch rogard tothe eximinalgrounds, see § 212(4)(13)(B)Gi). That having Deen said, we 10/9008 wzwune @NG = vosroo 8 Febds stot xvs $0 LL BooE/st/be Febri2-04 O1:SBan Frome 240 P.o06/009 Fede etiewe th drafters probably intended t9 amend § 212(@)23)08)0) 6 require DHS to waive the public charge ground in determining whether to grant “T visa applicetion, rather than subsection 214(n)- 7 Subsection 4(e): Penalties fer Unlawful Disclosure of Information ‘We strongly opposs the néw provisions goveming confidentiality of vvisn applications, and consequent penalioe fr unlawftl disclosure of information, novos and inappropriate. Section 222(f) of the Immigration ang ‘Nationelity Act already deems as aareremral (wth cern exceptions) information related tothe tsuance or ‘denial of visas. ‘We ae unaware of any inappropriate daclosores of information during ihe T visa process. That sald this provision does appeas to preclude ‘Federal law enforcement officials from FP vtewing T via applications forthe purpose of investigating oF prosecuting human trafficking Trimot, Eropoted ENA subsection 214(n)(5) states that “in no ease” may DHS or Deparment of State officiets "permit use by, or disclosure to, enyone, other than a sare officer ar employee of sre of such Departments for legitimate Department purpores, of ‘any information that relates to an alien" who has filed aT visa application. “This provision has the potential to derail our prosecutions when ‘T visa applicants are ‘prosecution witnesses, given prosecutors’ discovery responsibilities. ‘There is language in subparagraph (n)(5)(D) thet may ‘cover prosecutors’ discovery obligations ("may each provide. in ‘each Secretary's discretion, for the disclosure ‘f.information described in subparagraph (A) to Sra enforcement officals to bevused solely for a leghimate law enforcement purpose" [followed by a series of examples unrelated to prosecutors’ discovery ‘obligations]). However, itis not or a thal this would allow for disclosure to defense counsel. And ‘fit does not, hen it might Ferultin dismissal ofthe indictment because prosecutors could not comply with disclosure ‘bligations. Moreover, itis unclear whether such # provision ‘would require regulations to be Sfeued by DHS or the State Department, ht could potentially affect prosecutors’ abilities to ‘meet discovery obligations. ‘This provision doesnot appear to permit complisnce with judge's ards 1 produce cenain "epPdontie” information, Subparograph () stles"Subparagraph (4) S201 not be erated as preventing disclosure of information in connection with jue view of 3 Kennation in a manner that protects the confidentiality of such information. ‘This language Sppear to provide for review of records in the case of judicial review of the applications, but not with regard to other forms of judicial requests. ‘inully, these confidentiality provisions allow a penalty of $5,000 for each disclosure. ‘We believe it unwise to subject prosecalors (or DHS or State Department ‘personnel who allow cracraneess) 10 these sanctions if they legitimately disclose information in the course ofa ‘prosecution that is not deemed to be a "Ia ‘enforcement PUTpOSe.” 10/106 xanung ano > vnosroo seeerLsZoz HVS GO LL COGZ/E/EO Fabe!2-04OT:$Ban— roam Teedo P.007/aoe FGA 1f this provision is to remain, in carrying out the cerification responsibilities in section 1700y1)(E) ef the TVPA, the Department of Heath and Human Services mast bbe able to aoe ee eatin from DHS regarding a persons bona fide application for 8 vise we caairtnend that anew subparagraph (1) be added to section 214{n)(S) ofthe Immigration and Nerenaly Act a3 added by the bil. The new subparagraph would read ws follows: (The Seereuy of Homeland Security may disclose information described i subparagraph (A) tothe Department of Health and Human Servicws for the purposes of Jrmplementing section 107(0)(1)(E) ofthe Trafficking Vietims Protection Act of 2000.". tn summary, provision and safeguards exist for sharing visa information for roast enforcement activity. The. provisions of this subsection would impede domestic and international criminal investigations to identify ‘and gather evidence against waffickers. Section 5: Enhencing Prosecutions of Trattickers (18 USC Amendments) Subsection S(a) would extend the jortsdietlonal nexus of 18 U.S.C. § 1591 10 include féreign commerce and the special macitime jurisdiction of the United ‘Stotes; these changes arc (ertign Synos tothe original TVPA. We welcome these jurisdictional changes that will eahanee prosecutors” ability to bring human trafficking cases. ‘Trafficking Crimes as RICO Predicates ‘We suppor the inclusion of haman trafficking crimes as RICO predicates ‘These crimes occasionally ae perpetmled by organized groups that RICO was intended to MABE Indeed, the RICO predicate itm 18 U.S.C. § 1961(1) inelodes varios offenses that ovedap with human Trafficking offenses, including the aubstantive offenses in the pronaye and ner chapter of the rare eode (18 U.S.C. $8 1581-88) and tne main prosinuion offenses (18 US $5 2421-24). ane cdng offense coverage under RICO is useful, Furthermore, we believe adding human mafficking offenses to RICO's caverage would prove to be beneficial ‘We would soggee toro changes tothe RICO section as cwrently dra, Eo secon SCP) “which avends 18 U.S.C. § 1961(1) Befintion of “racketeeing activity") by adding the Het i ees reise trafficking in persons, we swggoat thatthe amendatory lanGusE> Pe

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