Child Trafficking Survivors:Civil Rights and Legislation

Kathleen Kim, Project AttorneyLawyers’ Committee for Civil Rights

of the San Francisco Bay Area

Legal Services

Criminal case advocacyImmigration assistanceCivil remediesFamily law

Criminal Case Advocacy

Victims’ attorneys fully inform their clients in the appropriate language, of the opportunity to cooperate with law enforcement in a criminal case against their traffickers.Victims need to be safe and stabilized before they can act as effective witnesses

Criminal Case Advocacy cont.

Victim’s attorneys assist their clients to cooperate with law enforcement agents by: informing them of their rights and role as a

witness preparing them to testify explaining timelines and criminal process assisting with temporary restraining orders

against traffickers following-up after trial with victim impact issues,

restitution, return of property, documents, etc. providing legal case management

Immigration Assistance

Immigration attorneys help trafficked clients assess immigration status and: pursue relief such as T or U visas,

asylum, Special Immigrant Juvenile visa, etc.

coordinate with derivative applicants in country of origin

assist with repatriation if safe and appropriate

Civil Remedies

Civil attorneys help their clients recover compensation and other damages from the traffickers by: pursuing the private right of action provided

by the TVPRA filing wage and hour complaints with the DOL filing discrimination complaints with the EEOC filing private suits for violations of the FLSA,

CA labor code, intentional torts and other civil rights laws

Family Law

Family law attorneys assist their clients with issues pertaining to child custody, divorce, domestic violence, temporary restraining orders, etc.

Role of NGO Legal Services

Trafficking victims need their own attorney to help them: understand the U.S. legal system and their

rights in a culturally and linguistically appropriate setting

understand the criminal legal process and their role as a victim-witness in a case

access immigration relief access civil remedies address other legal issues as they arise

Civil Remedies

Civil attorneys help their clients recover compensation and other damages from the traffickers by: pursuing the private right of action provided

by the TVPRA filing wage and hour complaints with the DOL filing discrimination complaints with the EEOC filing private suits for violations of the FLSA,

CA labor code, intentional torts and other civil rights laws

Civil Cases Involving Children

If minor is considered incompetent to sue, statute of limitations may be tolled to preserve the causes of actionGuardian ad litem (for the lawsuit) can be appointed to act as representativeIf cause of action is a violation of labor laws, civil remedies can be pursued administratively

Fair Labor Standards Act (29 U.S.C. § 201)

Wage and hourCompensatory and liquidated damages and civil penaltiesStatute of limitations: 2 years for non-willful, 3 years for willful

Fair Labor Standards Act

All workers, regardless of immigration status are entitled to the federal minimum wage of $5.15 per hour, and in most cases, time and a half for work periods beyond forty hours in one week. Still, the FLSA has specific rules and some exemptions that may apply to the industries where many trafficked workers are found.

Specific rules apply to:

RelativesDomestic workersSex workersChildrenAgricultural workers are protected by the Migrant and Seasonal Workers Protection Act

An attorney well apprised in employment law can assess the appropriate amount of wage and hour recovery for trafficked clients.

Children

The FLSA provides both added protections and exemptions for children

Oppressive Child Labor

Hour regulationAge limitationsRegulation of hazardous occupations

Major Exemption

No minimum age and hazardous job restrictions when child employed by his or her parent or person standing in parent’s place.

 Civil Penalties for Child Labor Violations

For each “oppressive child labor” violation, child worker is entitled to $11,000No private right of action for child labor violations so report to Department of Labor 

Trafficking Victims Protection Reauthorization Act, 2005 H.R. 972

Creates a guardian ad litem program for child victims of trafficking

kathleen kim:kathleen kim:kathlekim:kathlekim:

Guardian Ad Litem

Appointed by ORR with consultation from an NGOGuardian must be “qualified.”

Qualifications

Child welfare professional orTrained on the “nature of problems encountered by victims of trafficking”

Duties

Report to ORR on whether child is a victim of traffickingConduct interview with childInvestigate facts of caseWork with child’s attorney to determine eligibility for TVPA relief and benefitsEnsure the promotion of the best interest of the childEnsure that child understands legal proceedings

Child Eligibility for Benefits

ORR reviews guardian ad litem’s report to determine eligibility

Termination of Appointment

Duties compltedChild leaves U.S.Child granted LPR status in U.S.Child reaches 18Child is placed in custody of parent, legal guardian, or licensed child welfare agency

Powers of Guardian Ad Litem

Reasonable access to child including while child is in detention, with foster family or any other temporary living situationPermission to review all non-privileged information on proceedingsAdvance notification of all hearings and interviews involving the child in connection with any INA matters or any investigation or prosecution of the trafficking, and may be present at such hearings and interviews24 hour advance notice of child’s transfer to a different placement

Training

ORR authorized to provide training for guardian ad litems regarding the special problems faced by child trafficking victims and their immigration benefits and other rights under the TVPA of 2000.

Domestic Trafficking

Establishes a pilot program of residential treatment facilities for minor victims of domestic trafficking in the United States.

Establishes a grant program for states and local law enforcement to work with victim service providers to investigate and prosecute acts of domestic trafficking in persons.

Assembly Bill 22

The California Trafficking Victims Protection ActComprehensive anti-trafficking legislationCriminalizes trafficking in the stateProvides access to state social servicesProvides a trafficking civil remedyCreates a victim-counselor privilege