Gerardo Chavez Director for the Americas ICE Office of International Affairs Guatemala Legislation...

Gerardo Chavez Director for the Americas ICE Office of International Affairs

Guatemala

Legislation of the United States of America

Smuggling of Persons and Trafficking in Persons

2Office of Investigations

Smuggling Vs. Trafficking

Smuggling of Migrants

Introduction of persons into the United States through deliberate evasion of migration laws. In addition to the illegal introduction of persons into the United States, this crime includes illicit transportation or hiding of illegal persons who already are in US territory.

Trafficking in PersonsTrafficking for sexual exploitation where commercial sex is induced through the use of force, fraud, or coercion, or if the person induced to perform such act is under 18 years of age; or,

Recruiting, hiding, transporting, facilitating, or obtaining a person to perform a task or service, through the use of force, fraud, or coercion, with the aim of submitting him/her to involuntary servitude or slavery.

Smuggling vs. Trafficking

One of the biggest global challenges is making a correct distinction among both crimes

Smuggling of persons can involve elements of violence

The presence of these aggravating circumstances alone does not constitute Trafficking in Persons

Elements are force, fraud, or coercion with purposes of commercial sexual exploitation or forced labor

Smuggling of Persons

General PerspectiveThe Crime and Its Elements

I.Smuggling of Persons Elements

Sanctions

II.Related Crimes

III.Material Support of Foreign Terrorist Organizations

Smuggling of PersonsTitle 8 of the US Code, Section 1324

1.Illegally bringing persons to a place which has not been designated as Port of Entry into the United States

2.Transporting illegal persons in the United States

3.Harboring or hiding illegal persons in the United States

4.Instigating or inducing illegal persons to enter the United States

5.Bringing illegal persons into the United States

6.Attempt

7.Conspiracy

8.Complicity / Facilitating perpetration of the crime

Bringing them to a place which has not been designated as Point of Entry into the US

Title 8 of the US Code, Section 1324(a)(1)(A)(i)

Knowingly bringing an illegal person to the United States

In any way

To a place which has not been designated as Port of Entry into the United States

Knowing the person’s illegal status

Fraud / Intention of committing the crime (9th. Circuit)

Transporting Illegal Persons in the United StatesTitle 8 of the US Code, Section 1324(a)(1)(A)(ii)

Knowingly transferring or transporting an illegal person

Negligently knowing or not knowing the person’s illegal status

To a place which has not been designated as Port of Entry into the US

Following up on the illegal presence of the person in the US

Concealing or hiding illegal persons in the US

Knowingly harboring, hiding, or protecting an illegal person so that he/she is not discovered

Negligently knowing or not knowing that the person has entered the US in an illegal fashion

Carrying out actions which tend to facilitate the presence of an illegal person in the US

Title 8 of the US Code, Section 1324(a)(1)(A)(iii)

Instigate or InduceTitle 8 of the US Code, Section 1324(a)(1)(A)(iv)

Knowingly instigating or inducing a person to illegally travel to, enter, or reside in the US

Negligently knowing or not knowing the fact that the person’s entry into the US would be illegal

The Accused only needs to “Help or Advise” the illegal The Accused only needs to “Help or Advise” the illegal person. person. U.S. Vs. U.S. Vs. He, 245 F. 3er 954 (7mo Circ. 2001)He, 245 F. 3er 954 (7mo Circ. 2001)

Bringing illegal persons to the US to make a profitTitle 8 of the US Code, Section 1324(a)(2)(B)(ii)

Knowingly bringing illegal persons into the US

Negligently knowing or not knowing the fact that the person has not been authorized to travel to, enter, or reside in the US

Committing the crime for commercial or monetary profit

Fraud / Intention to commit the crime (9th. Circuit)

ConspiracyTitle 8 of the US Code, Section 1324(a)(2)(A)(v)(I) – Title 18 of the US Code, Section 371

Illegal agreement between two or more persons

Knowing and voluntarily participating in the agreement

Obvious acts by the conspirator to follow up on the agreement

Facilitate Perpetration of the CrimeTitle 8 of the US Code, Section 2

Knowingly transferring or transporting an illegal person

Negligently knowing or not knowing the person’s illegal status

To a place which has not been designated as a Point of Entry into the US

Following up on the illegal person’s presence in the US

AttemptTitle 8 of the US Code, Section 1324(a) y (b)

Acting with the mental state required to commit the crime. For example, knowingly bringing, knowingly hiding, etc.

Participating in behavior which constitutes a substantial step toward committing the crime

A “Substantial Step” is more than preparation and less A “Substantial Step” is more than preparation and less than perpetration.than perpetration.

Highest Sanctions

5 - 20 years in prison

Up to US $250,000 in fines

Up to 3 years of probation

If any casualty occurs the sanction may be death penalty or a life sentence

Minimum Sanctions Stipulated by Law

Bringing persons to make a profit

1 - 2 illegal persons = 3 years in prison

3 or more illegal persons = 5 years in prison

Title 8 of the US Code, Section 1324(a)(2)(B)(ii)

Case StudyTrafficking in Persons

Operation PandaICE New York Office

ICE, FBI, NY Police Department

Five violent Chinese gangs established in NY, involved in:

Murder attempt

Illegal bets

Smuggling of Persons

Money laundering

Extortion

Falsified products

Imported falsified Chinese merchandise in large containers

False declaration of the merchandise as food

Smugglers used multiple bureaus de change in NY to structure money transfers (less than US $10,000)

In addition, they used an alternative remittance system known as “Goushens”

Members of the gang are from the Province of Fujian, China

They smuggled Chinese nationals across the Mexican/US border

They used violence as an intimidation strategy

Chinese nationals were kept hostage until the debt for their transportation (smuggling) had been paid off

Operation Panda

100 or more individuals processed under the following charges: Title 18 of the US Code, Section 1962 – Extortion and Conspiracy to Extort

Title 18 of the US Code, Section 1959 – Perpetrating Violent Crimes to Facilitate Extortion

Title 18 of the US Code, Section 894 – Obtaining Credit through Extortion

Title 18 of the US Code, Section 1203 – Taking Hostage

Title 18 of the US Code, Section 1956 – International Money Laundering

Title 18 of the US Code, Section 1324 – Smuggling of Persons

Title 18 of the US Code, Section 1955 – Illegal Bets

Title 18 of the US Code, Section 2320 – Smuggling Falsified Products

Confiscations 2 weapons

US $150,000

Falsified merchandise with a commercial value of more than US $16 million

Results

Trafficking in Persons

US Legislation on Trafficking in Persons

Trafficking Victims Protection Act of 2000 (TVPA)

Prosecutorial Remedies and other Tools to end the Exploitation of Children Today Act (PROTECT Act) of 2003

Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA 2003)

Trafficking Victims Protection Reauthorization Act of 2005 (TVPRA 2005)

Trafficking for sexual exploitation where a commercial sexual act is induced through the use of force, fraud, or coercion, or if the person induced to perform such act is under 18 years of age; or,

Recruiting, hiding, transporting, facilitating, or obtaining a person to perform a task or service, through the use of force, fraud, or coercion, with the aim of subjecting them to involuntary servitude or slavery.

Definition of Trafficking in Persons

Trafficking Victim Protection Act (TVPA)

Prison sentences have been increased to 10 - 20 years.

Life sentence is possible when death, kidnapping, or aggravated sexual abuse of a victim occurs as well.

Increasing Sentences

Victims of Trafficking in Persons with an illegal status in the US are treated as victims

Programs have been established to assist victims, including immigration resources

Benefits which have been provided to refugees are also provided to victims of Trafficking in Persons who wish to provide support in processes against those who trafficked them

Focus on the Victim as a Central Element

Was the person retained in order to render services to another person – sexual favors or work – or recruited or transported to be retained for these purposes?

Was the service obtained from the victim through the use of force, threats, psychological manipulation, or confiscation of his/her legal identity documents?

Threshold with two Aspects

The Crime of Trafficking in Persons

Recruiting, hiding, transporting, facilitating, or obtaining a person through the use of force, fraud, or coercion for the purpose of a commercial sexual act, or if the person being induced to perform such act is under 18 years of age

Trafficking for Sexual Exploitation

Facilitating or obtaining labor or services from a person through:

Threats to cause serious harm to that person or another person;

Any scheme, plan, or pattern which places the victim in a situation of fear of suffering serious harm; or

Misuse of – or threat to misuse – legal procedures

Forced Labor

Retaining a victim’s identity documents, authentic or presumably authentic, during the course of perpetration of the crime of Trafficking in Persons.

Servitude through Retention of Identity Documents

Coercion

Physical Evidence

Physical force is NOT required

Psychological coercion

Elements of Non-Defense

Consent to be trafficked

Consent to initially perform an illegal act

Special Provisions

Attempt

Focus on the perpetrator’s attempt

Burden shifted away from the victim

Can be sanctioned in the same manner as the complete crime of Trafficking in Persons

Special Provisions

Victim Protection

Services for the victim

Special immigration services

Special Provisions

“Reauthorizes” the Trafficking Victim Protection Act.

Adds responsibilities to the efforts implemented by the US Government to combat Trafficking:

Information campaigns to combat sexual tourism

Refining Federal Criminal Law

Creates civil action for victims to sue their traffickers

Obligation to report the deed

Special Provisions

Trafficking Victims Protection Reauthorization Act of 2003 (2003 TVPRA)

Prosecutorial Remedies and other Tools to end the Exploitation of Children Today Act (PROTECT Act) of 2003

PROTECT Act

Extensive prohibition against sexual tourism

More severe sentences (Up to 30 years for being involved in sexual tourism)

Victim protection is added

PROTECT Act

Persons who arrive in the US to participate in illicit actions

Sexual tour operators

Any US citizen who travels abroad to participate in sexual tourism

PROTECT Act

Case StudyTrafficking in Persons

MaksimenkoICE Detroit Office

Investigation led by ICE, initiated in 2005 because of reports by two trafficking victims

The main suspect is the Vice-President of “Beauty Search, Inc.”

Managed exotic dancers from Eastern Europe

Smuggled and forced victims to work in strip clubs to pay for their transportation (smuggling) and other fees

Maksimenko The System – Coercion Measures

Confiscating passports / identity documents

Imposition of debts of up to US $25,000.

Keeping victims in social/linguistic isolation

Imposition of “rules” to isolate women

Interrogatories, monetary sanctions, rough physical treatment, intimidation, threats of violence, and displaying firearms

Maksimenko The System – Coercion Measures

Periodic inspections of women’s apartments while they were working

Microphones/recorders placed in women’s apartments to listen to and tape their conversations

Telling stories – real or fictitious – of women who were abused in the past

Treats of prison and deportation

MaksimenkoICE Detroit Office Eight people were arrested

and processed under charges of Forced Labor, Visa Fraud, Smuggling of Persons, Money Laundering, and Extortion

ICE agents executed numerous search orders which resulted in the confiscation of two firearms, two vehicles, and more than US $500,000, most of which were located in multiple safety deposit boxes

Conclusion

Strengthen both our statutes and authorities in order to arrest and dismantle criminal organizations

Global collaboration is required to defeat smugglers and traffickers at a global level

Money is the main artery of criminal organizations – let’s take away the financial incentive from them

Make every possible effort to locate and rescue men, women, and children who are victimized by smugglers and traffickers

Gerardo Chavez Director for the Americas ICE Office of International Affairs

Guatemala

Legislation of theUnited States of America

Smuggling of Persons and Trafficking in Persons

Gerardo Chavez Director for the Americas ICE Office of International Affairs Guatemala Legislation...

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