DOJ and State Dept. issue regulations implementing victims of trafficking law
Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

On July 24, 2001, the State Dept. and Dept. of Justice (DOJ) issued interim regulations implementing section 107(c) of the Trafficking Victims Protection Act of 2000 (TVPA). Congress enacted the TVPA in order to combat trafficking in persons, both in the United States and internationally. The TVPA provides the federal government comprehensive tools of investigation and enforcement, and authorizes assistance and protection-including immigration relief-to individuals who cooperate with the investigation and prosecution of traffickers.

The new regulations, which implement the portions of the TVPA concerning protections and services for trafficking victims, offer guidance to officials of the DOJ and State Dept. as well as other law enforcement agencies that may encounter victims. The regulations provide definitions to key TVPA terms. They also address the development of procedures to protect and provide services to trafficking victims; victim identification; detention; providing victims access to information on protection, safety, medical care, and rights; mechanisms for allowing victims to remain in the U.S.; and training for law enforcement personnel.

Definitions. The following are some of the key definitions provided by the regulations.

"Coercion" means threats of serious harm to or physical restraint against any person. It also encompasses any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person. Coercion also includes the abuse or threatened abuse of law or the legal process.

"Commercial sex act" means any sex act in exchange for which something of value is given to or received by any person.

"Debt bondage" means the status or condition of a debtor stemming from his or her pledge of personal services or those of a person under his or her control as a 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 and defined.

"Family members" of trafficking victims include spouses, children, parents, or siblings whom traffickers have targeted or are likely to target and for whom protections from harm may reasonably be provided. The regulations also extend to responsible officials the discretion to include other family members in the family classification.

"Federal victims' rights legislation" includes the Victim and Witness Protection Act of 1982 (VWPA), the Victims of Crime Act of 1984, the Victims Rights and Restitution Act of 1990, the Violent Crime Control and Law Enforcement Act of 1994, the Antiterrorism and Effective Death Penalty Act of 1996, the Victims Rights Clarification Act of 1997, and the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA; note: the TVPA is also known by this name).

"Involuntary servitude" means a condition of servitude induced through 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 be seriously harmed or physically restrained. The term also encompasses the abuse or threatened abuse of the legal process to induce a condition of servitude.

"Severe forms of trafficking in persons" means sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act is under 18 years of age. It also includes the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion, in order to subject that person to involuntary servitude, peonage, debt bondage, or slavery.

"Sex trafficking" means recruiting, harboring, transporting, providing, or obtaining a person in order to have that person participate in a commercial sex act.

Purpose and Scope of Regulations. The regulations apply to all federal law enforcement, immigration, and State Dept. officials to the extent that their duties involve investigating or prosecuting traffickers or that their duties may involve identifying, encountering, or detaining trafficking victims. The regulations' stated intent is to ensure that trafficking victims are fully accorded the rights and protections available to them under both the TVPA and other victims' rights' legislation.

According to the regulations, the DOJ's various components bear most of the responsibilities assigned by TVPA section 107(c). Such responsibilities include identifying trafficking victims as early as possible in the investigation and prosecution process. Appropriate personnel in State Dept. missions are required to be trained in identifying victims. Upon encountering victims, the missions are charged with referring victims to local law enforcement or service providers in the host country, provided local country conditions support those actions. The regulations authorize federal law enforcement officials who encounter trafficking victims to bring them to the attention of the Immigration and Naturalization Service or the Federal Bureau of Investigation, which are the two agencies primarily responsible for enforcing trafficking laws.

Detention of Trafficking Victims. The regulations state that, to the extent legal and practicable, law enforcement officials must, in every case, consider alternatives to formally detaining trafficking victims. However, if detention is required, victims must not be detained in facilities inappropriate to their status as crime victims and officials must make all efforts to house them separately from criminals.

While in federal custody, victims must be provided protections and services in accordance with their status as victims. Under 42 U.S.C. section 10607(a), each agency must designate officials who are responsible for identifying crime victims and providing them with services. Such services include providing victims with information on where they might receive emergency medical and social services, and information on available public or private programs for counseling, treatment, and other support. Victims must also be informed about federal prohibitions on intimidation and harassment.

Medical Care. According to the regulations, victims in federal custody must receive medical care and other health-related assistance. Such care should include free optional testing for HIV and other sexually transmitted diseases in cases involving sexual assault or trafficking in the sex industry. Victims should also receive a counseling session by a medically trained professional on the accuracy of the tests and the risk of transmission of sexually transmitted diseases to the victim. The regulations advise that providing other forms of mental health counseling or social services may also be appropriate.

Protection from Intimidation. Pursuant to the Victim and Witness Protection Act of 1982 (VWPA), federal law enforcement agencies are directed to protect trafficking victims from harm and intimidation. The VWPA sets forth punishment for certain crimes, such as obstruction of justice and witness tampering, and provides for remedies like temporary restraining orders to protect victims from potential harassment or injury from offenders. The regulations suggest that federal officials advise victims on these available remedies. They also direct officials to employ civil procedures to protect victims and witnesses.

If the victim is at risk, responsible officials are, under the TVPA, required to

Informing Victims of Their Rights and Available Services. The regulations instruct federal officials to provide victims with information about the following:

Authority to Permit Continued Presence in the U.S. The regulations provide a means by which law enforcement officials who encounter trafficking victims who may be potential witnesses can request that the INS grant them continued presence in the U.S. All such requests must be submitted to the Office of Field Operations at INS Headquarters. Each federal law enforcement agency must designate a headquarters office to administer submissions and coordinate with the INS on all requests for continued presence.

Upon receiving the request, the INS must determine the victim's immigration status. The INS may use a variety of statutory and administrative mechanisms to allow the individual's continued presence in the U.S. Such mechanisms include granting parole, voluntary departure, stay of a final order, or any other authorized form of continued presence, including applicable nonimmigrant visas. (The TVPA created two new nonimmigrant visas for this purpose, the "T" and "U" visas.) The INS may also grant deferred action based on the trafficking victim's cooperation in an investigation or prosecution of a trafficking case.

Continued presence granted through any of the mechanisms will contain the terms normally associated with the type of presence granted, including: duration of benefit, terms and procedures for receiving an extension, travel limitation, and employment authorization. Individuals granted deferred action based upon their cooperation in an investigation or prosecution of a trafficking case are considered to be present in the U.S. pursuant to a period of stay authorized by the attorney general and are therefore not inadmissible under Immigration and Nationality Act section 212(a)(9)(B)(I) and (C) (bars to admission triggered by unlawful presence and by unlawful presence after previous immigration violations).

In cases where granting an individual continued presence in the U.S. poses a threat to national security or the public, the INS may require the requesting agency to meet special conditions prior to approval. The INS must timely convey such conditions to the requesting agency in writing.

The INS may deny a law enforcement agency's requests when

In case of a denial, the regulations require that the INS promptly notify the designated office within the requesting agency. The INS is directed to reach an acceptable resolution with the requesting agency. If resolution is not possible, the INS must promptly forward the matter to the deputy attorney general or his designee for resolution.

Training. The regulations require that DOJ and State Dept. personnel be trained in identifying victims of trafficking and in providing for their protection. The training must specifically include

Each component of the State Dept. and DOJ with program responsibility for victim witness services must provide initial training in the particular needs of victims. Initial training should be conducted as soon as possible and held on a recurring basis to ensure that victims' rights are protected and that they receive all the protections and services accorded them under the TVPA and other federal law.

The new regulations took effect on Aug. 23, 2001, and the comment period will end on Oct. 22, 2001.

66 Fed. Reg. 38,514-22 (July 24, 2001).