CLINIC/MRS/LAFLA Guide for Legal Advocates Providing Services to Victims of Human Trafficking Jan. 2005 A GUIDE FOR LEGAL ADVOCATES PROVIDING SERVICES TO VICTIMS OF HUMAN TRAFFICKING TABLE OF CONTENTS Table of Contents………………………………………………………………………….i Acknowledgments……………………………………………………………………….vii Chapter 1 An Overview of Human Trafficking……………………………….…...1-1 § 1.1 What is human trafficking?……………………………………………………..1-1 § 1.2 Some illustrations…………………………………………………………….....1-3 § 1.3 Definitions………………………………………………………………………1-4 § 1.4 Human Trafficking and People Smuggling………………………………..........1-5 § 1.5 International Efforts……………………………………………………………..1-5 § 1.6 What the United States is Doing to Combat Human Trafficking……………….1-6 § 1.7 Community-Based Organizations and Services for Victims of Human Trafficking…………………………………………………………………..…..1-9 § 1.8 For More Reading…………………………………………………………….....1-9 § 1.9 Some Useful Websites…………………………………………………………1-10 Appendices: • U.S. Department of Justice, Civil Rights Division, Overview of Department of Justice Procedures Regarding Cases Involving Trafficking in Persons..App. 1-1 • U.S. Department of Justice, Office of Victims of Crimes, Trafficking in Persons…………………………………………………………………...App. 1-10 • Fact Sheet on Worker Exploitation………………………………………App. 1-14 • U.S. Dept. of Health and Human Services, News Release: HHS Announces Anti-Trafficking Hotline, Awareness Effort (March 11, 2004)………....App. 1-17 Chapter 2 Assessing and Meeting the Needs of Victims of Human Trafficking…..2-1 § 2.1 The Complex Needs of Trafficking Victims and the Need for Collaboration….2-1 § 2.2 Considerations in Interviewing Victims of Human Trafficking .……………….2-4 § 2.3 Assessing the Needs of the Client who is a Victim of Human Trafficking..........2-6 § 2.4 Certification for Benefits……………………………………………………..…2-8 § 2.5 Benefits for Victims of Human Trafficking Prior to Certification…………….2-10 § 2.6 Special Considerations when the Victim is a Child……………………….......2-10 § 2.7 Interacting with Law Enforcement on Behalf of the Trafficking Victim……...2-11 § 2.8 For further reading……………………………………………………………..2-12 i CLINIC/MRS/LAFLA Guide for Legal Advocates Providing Services to Victims of Human Trafficking Jan. 2005 Appendices: • Confidential Screening Form, prepared by Safe Horizon…………………App.2-1 • Trafficking Referral Form, prepared by the Coalition to Abolish Slavery and Trafficking…………………………………………………..App. 2-2 • MRS and LIRS, Guidance for Identifying a Child Victim of Trafficking………………………………………………………………..App. 2-3 • MRS and LIRS, Frequently Asked Questions About Services to Trafficked Children………………………………………………………App. 2-5 Chapter 3 Introduction to Immigration Law § 3.1 Introduction……………………………………………………………………3-1 § 3.2 First Steps: Vocabulary………………………………………………….…….3-1 § 3.3 Ways of Gaining Legal Permanent Resident Status………………………......3-3 § 3.4 Who’s in Charge?..............................................................................................3-3 § 3.5 Impact of Admissibility and Deportability Rules……………………………..3-5 § 36 Analyzing Rights and Remedies under Immigration Law……………………3-5 § 3.7 Who can Represent an Applicant for Immigration Benefits………………….3-6 § 3.8 Immigration Relief for Victims of Human Trafficking……………………….3-6 Chapter 4 T Nonimmigrant Visas § 4.1 Overview………………………………………………………………………..4-2 § 4.2 Requirements for T nonimmigrant visas………………………………………..4-3 § 4.3 Establishing that the applicant is a victim of a severe form of trafficking in persons………………………………………………………………….…….4-4 § 4.4 Establishing compliance with reasonable requests for assistance………………4-5 § 4.5 Special issues in working with law enforcement agencies………………….......4-7 § 4.6 Establishing extreme hardship involving unusual and severe harm…………….4-8 § 4.7 Establishing physical presence………………………………………………...4-10 § 4.8 Overcoming inadmissibility as a nonimmigrant…………………….…………4-10 § 4.9 Annual limit on T visas……………………………………………………..…4-13 § 4.10 Contents of the nonimmigrant T visa application……………………………..4-14 § 4.11 Completing the Forms…………………………………………………………4-15 § 4.12 The Victim’s Personal Statement or Affidavit……………………….………..4-20 § 4.13 Form I-914 B Law Enforcement Declaration……………………….………...4-24 § 4.14 Additional Documents……………………………………………….………..4-24 § 4.15 Filing and adjudication of the application…………………………….…….…4-24 § 4.16 Special procedures for persons in removal proceedings or with a final order of removal…………………………………………………………….....4-25 § 4.17 Filing deadline where victimization occurred prior to October 28, 2000..........4-26 § 4.18 Admission of the T-1 nonimmigrant’s immediate family members………..…4-26 § 4.19 Adjustment of status from T nonimmigrant to lawful permanent resident……………………………………………………………...………….4-28 ii CLINIC/MRS/LAFLA Guide for Legal Advocates Providing Services to Victims of Human Trafficking Jan. 2005 Appendices • Sample Form I-914 and supporting documents, including Form I-914 Supplement B (law enforcement endorsement), Supplement A (application for immediate family member of T-1 recipient), and fee waiver request……………………………………………………………..App. 4-1 • Form G-639, Freedom of Information/Privacy Act Request……………App. 4-21 • Form I-192, Application for Advance Permission to Enter as Nonimmigrant……………………………………………………………App. 4-25 • William R. Yates, Ass. Dir. Operations, US CIS, Memo re: Trafficking Victims Protection Reauthorization Act of 2003 (April 15, 2004)….….App. 4-27 • William R. Yates, Assoc. Dir. Oper., US CIS, Memo re: Field Guidance on Granting Fee Waivers Pursuant to 8 CFR 103.7(c)………..App. 4-30 Chapter 5 Continued Presence for Victims of Human Trafficking Appendices: • Coalition to Abolish Slavery and Trafficking (CAST), Continued Presence Checklist………………………………………………………..App. 5-1 • CAST, Continued Presence Process……………………………………...App. 5-2 • CAST, Law Enforcement Agency Certification for Continued Presence..App. 5-3 • U.S. Department of Justice, Request for Continued Presence……………App. 5-5 • U.S. Department of Justice, Instructions Governing “Continued Presence” Requests made by Federal Law Enforcement Agencies to the Immigration and Naturalization Service…………………………………App. 5-9 Chapter 6 Public benefits for victims of human trafficking § 6.1 Overview…………………….……………………………………………….…6-2 § 6.2 Establishing Eligibility for Public Benefits as a Trafficking Victim…….……..6-2 § 6.3 Cash Assistance Available to Victims of Human Trafficking……………….…6-4 § 6.4 Health Care……………………………………….………………………….…6-7 § 6.5 Social Services……………………………………..…………………………...6-9 § 6.6 Food Assistance………………………………………………….. …………...6-10 § 6.7 Housing….……………………………………………………………………..6-11 § 6.8 Legal Services……….……………………………………………………..…..6-11 Appendices: • Sample ORR certification letter for adult victim……………………….…App. 6-1 • Sample ORR eligibility letter for child victim……………………………App. 6-2 • Sample bone fide letter from CIS/Vermont Service Center………………App. 6-3 • Migration and Refugee Services, Benefits Eligibility for Adult Trafficking Victims……………………………………………………………………App. 6-4 iii CLINIC/MRS/LAFLA Guide for Legal Advocates Providing Services to Victims of Human Trafficking Jan. 2005 • Migration and Refugee Services, Special Benefits for Trafficked Children…………………………………………………………………..App. 6-6 • National Immigration Law Center, Overview of Immigrant Eligibility for Federal Programs……………………………………………………..App. 6-8 • Michael A, Pearson, Exec. Assoc. Comm’r, Immigration and Naturalization Service, re: Verification of Immigration-Related Elements for Certification for Benefits under the Victims of Trafficking and Violence Protection Act of 2000 (April 10, 2001)…………………………………………………App. 6-12 • Department of Health and Human Services, Administration for Children and Families, Office of Refugee Resettlement, State Letter SL01-13 (May 3, 2001)……………………………………………………………App. 6-15 • ORR State Letter 02-01 (January 4, 2002)………………………………App. 6-29 • ORR State Letter 02-07 (March 6, 2002)………………………………..App. 6-31 • ORR State Letter 02-25………………………………………………….App. 6-34 • Randi Youlls, Vice President for Programs, Legal Services Corporation, re: Eligibility of Immigrant Victims of Severe Forms of Trafficking for Legal Services, May 15, 2002…………………………………………..App. 6-35 • Letter from Mattie C. Coudray, Senior Associate General Counsel, Legal Services Corporation, to Michael Dale, August 2, 2002…………App. 6-37 Chapter 7 U Nonimmigrant Visas and Applications for Interim Relief § 7.1 Introduction…….………………………………………………………….……7-2 § 7.2 Requirements for the U Visa……………………………………………………7-3 § 7.3 Annual Limit on U Visas………………………………………………………..7-4 § 7.4 Evidentiary Standard……………………………………………………………7-4 § 7.5 Family Members of U Nonimmigrants………………………………………....7-4 § 7.6 Waivers of Inadmissibility for U Nonimmigrants……………………………....7-4 § 7.7 Employment Authorization……………………………………………………..7-5 § 7.8 Adjustment to Permanent Residence……………………………………..……..7-5 § 7.9 Current Status of U Visas……………………………………………………….7-6 § 7.10 Applications for Interim Relief by Potential U Nonimmigrants………….…….7-6 § 7.11 Submission of an Interim Relief Request…………………………………….…7-7 § 7.12 Deferred Action for Successful Applicants………………………………….….7-9 § 7.13 Bars to Interim Relief Eligibility……………………………………………..…7-9 § 7.14 Interim Relief for Persons in Proceedings before the Immigration Court……....7-9 § 7.15 Assessing Risks and Benefits of Applying for U Interim Relief………………7-10 § 7.16 Useful websites...……………………………………………………………....7-10 Appendices: • Nasha Vida, Sally Kinoshita, and Gail Pendleton, U Visas: Immigration Relief for Victims of Certain Crimes, Frequently Asked Questions..…….App. 7-1 • National Network on Behalf of Battered Immigrant Women, U Visa Certification Form and Instructions………..……………………………...App. 7-5 iv CLINIC/MRS/LAFLA Guide for Legal Advocates Providing Services to Victims of Human Trafficking Jan. 2005 • Asian Pacific Islander Legal Outreach, Sample cover letter for U interim • relief application……………………………………………………..…..App. 7-11 • Sample Interim Relief Request, prepared by Sherizaan Minwalla, Midwest Immigrant and Human Rights Center………………………….App. 7-14 • Michael A. Pearson, Exec. Assoc. Comm’r, Office of Field Operations, Immigration and Naturalization Service, re: Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) Policy Memorandum # 2 – “T” and “U” Nonimmigrant Visas (August 30, 2001)……...……..App. 7-16 • Stuart Anderson, Exec. Assoc. Comm’r, Office of Policy and Planning, Immigration and Naturalization Service, re: Deferred Action for Aliens with Bona Fide Applications for T Nonimmigrant Status (May 8, 2002).App. 7-22 • William R. Yates, Assoc. Dir. Oper., US CIS, re: Centralization of Interim Relief for U Nonimmigrant Status Applicants (Oct. 8, 2003)…..App. 7-25 • William R. Yates, Assoc. Dir. Oper., US CIS, Memo re: Assessment of Deferred Action in Requests for Interim Relief from U Nonimmigrant Status-Eligible Aliens in Removal Proceedings (May 6, 2004)…………App. 7-32 • Flyer: Immigration Benefits for Crime Victims (prepared by the Chicago Area U Visa Working Group…………………………………...App. 7-34 Chapter 8 Special Immigrant Juvenile Status for Children Under Juvenile Court Jurisdiction § 8.1 Introduction and Overview……………………………………………………...8-1 § 8.2 Who is Eligible to Become a Permanent Resident through Special Immigrant Juvenile Status?…………………………………………………………….…...8-1 § 8.3 What are the Benefits of Applying for Special Immigrant Juvenile Status?.…...8-2 § 8.4 What are the Risks of Applying?………………………………………….…….8-3 § 8.5 Requirements for the Special Immigrant Juvenile Status Petition……………..8-4 § 8.6 The applicant for permanent residence status…………………………………8-10 § 8.7 Who Should Apply?…………………………………………………………...8-12 § 8.8 What is the Application Procedure?…………………………………………...8-12 § 8.9 Warning: Special Procedures for Children in Actual or Constructive Immigration Custody………...……………………………………………..….8-15 § 8.10 Talking with the Child Applicant and the Child’s Attorney about SIJS………8-17 § 8.11 Note: Original Parents, and Maybe Siblings, Cannot Benefit Through a Grant of SIJS to a Child…………………….………….……………...……….8-18 § 8.12 Useful website………………………………………………………………...8-18 Appendices: • Sample SIJS application………………………………………………..…App. 8-1 • William R. Yates, Assoc. Dir. Oper., US CIS, Memorandum # 3 – Field Guidance on Special Immigrant Juvenile Status Petitions (May 27, 2004) ……………………………………………………………………..App. 8-7 v CLINIC/MRS/LAFLA Guide for Legal Advocates Providing Services to Victims of Human Trafficking Jan. 2005 Chapter 9 Other Potential Forms of Immigration Relief for Victims of Human Trafficking: Self-petitions under the Violence against Women Act, Asylum, and Relief under the Convention against Torture § 9.1 Introduction……………………………………………………………………9-2 § 9.2 Self-petitioning for abused spouses and children of U.S. citizens and lawful permanent residents……………………………………………………………9-2 § 9.3 VAWA cancellation of removal……………………………………………….9-5 § 9.4 Special waivers for abused conditional permanent residents………………….9-7 § 9.5 Asylum…………………………………………………………………………9-7 § 9.6. Relief under the Convention against Torture…………………………………..9-9 § 9.7 Conclusion……………………………………………………………………..9-10 § 9.8 For additional reading………………………………………………………….9-10 § 9.9 Useful websites………………………………………………………………...9-10 Chapter 10 Representing Immigrant Clients: Applying for BIA Agency Recognition and Staff Accreditation § 10.1 Introduction……………………………………………………………………10-1 § 10.2 Agency Recognition…………………………………………………………...10-2 § 10.3 Accreditation of Representatives……………………………………………....10-4 Chapter 11 Resources for Advocates Serving Victims of Human Trafficking And other Forms of Abuse and Crime……………………………..….11-1 § 11.1 Written materials……………………………………………………………....11-1 § 11.2 Non-governmental Organization Internet Resources………………………….11-2 § 11.3 U.S. Government Websites……………………………………………………11-3 § 11.4 Technical Assistance…………………………………………………………..11-3 § 11.5 Finding Representation………………………………………………………..11-7 § 11.6 Listservs……………………………………………………………………….11-7 vi CLINIC/MRS/LAFLA Guide for Legal Advocates Providing Services to Victims of Human Trafficking Jan. 2005 ACKNOWLEDGMENTS This manual was made possible by two generous grants from the U.S. Department of Health and Human Services’ Office of Refugee Resettlement. These grants have provided funding to the United States Conference of Catholic Bishops’ Migration and Refugee Services (MRS) for provision of a broad range of services to victims of human trafficking and to the Legal Aid Foundation of Los Angeles (LAFLA) to provide training and technical support to advocates working on behalf of victims of human trafficking. A number of people contributed to the chapters in this manual. Chapters 1, 5, and 9 were written by Evangeline Abriel of the Catholic Legal Immigration Network, Inc. (CLINIC), under subcontract with MRS. Chapter 2 was written by Evangeline Abriel and Laurie Latuda, of MRS. Susan Schreiber, of CLINIC, wrote chapters 3 and 12 under subcontract with MRS. Chapter 4 was adapted by Evangeline Abriel from a chapter she originally wrote for The VAWA Manual: Immigration Relief for Abused Immigrants (August 2002, revised July 2003), a manual written by CLINIC and the Immigrant Legal Resource Center (ILRC) under a generous grant from the California Endowment. Sheila Neville, of LAFLA, wrote chapter 6. Susan Schreiber updated chapter 7 from a chapter originally written by Evangeline Abriel in The VAWA Manual. Chapter 8 was adapted by Tom Shea from a chapter originally written by Sally Kinoshita of the ILRC in The VAWA Manual. Chapter 11 was adapted by Evangeline Abriel from materials prepared by Kathleen Kim, Sally Kinoshita of the Immigrant Legal Resource Center, and Evangeline Abriel. Angela Perry, a volunteer attorney with LAFLA, provided invaluable research assistance on Chapter 6, while Tanya Broder of the National Immigration Law Center kindly reviewed that chapter and Julia Sullivan, a law clerk with LAFLA, was of great help in revising the chapter. Laurie Latuda and Nyssa Mestas of MRS provided valuable input on the entire manual. Janet Alfaro-Arizmendi and Edwin Arevalo, of Santa Clara University School of Law, provided great assistance in converting the manual chapters and appendices into pdf format, so that the manual could be distributed electronically. Charles Wheeler provided overall editing of the manual. The manual was compiled and edited by Evangeline Abriel. We thank the advocates who generously allowed us to use their materials as appendices to this manual. Safe Horizons and the Coalition to Abolish Slavery and Trafficking (CAST) provided the intake sheets appearing as appendices to Chapter 2, and the Lutheran Immigration and Refugee Service (LIRS) and MRS allowed us to use their materials on child victims of human trafficking, also appendices to Chapter 2. The sample T visa application appearing as an appendix to Chapter 4 was prepared by Susana Martinez, an attorney with the Legal Aid Foundation of Los Angeles (LAFLA), and the fee waiver application appearing at Appendix 4-6 was provided through the VAWA Manual referenced above. The Coalition to Abolish Slavery and Trafficking provided the information regarding continued presence, appearing as appendices to Chapter 5. Some of the benefits eligibility charts appearing after Chapter 6 were prepared by MRS, while others were prepared by the National Immigration Law Center. Mona Patel-Sikora vii CLINIC/MRS/LAFLA Guide for Legal Advocates Providing Services to Victims of Human Trafficking Jan. 2005 provided the sample bona fide letter from the Vermont Service Center, included as an appendix to Chapter 6. The National Network on Behalf of Battered Immigrant Women wrote the law enforcement certification form and instructions, appearing as appendices to Chapter 7. Kavitha Sreeharsha, of the Asian Pacific Islander Legal Outreach in San Francisco, and Sherizaan Minwalla, of the Midwest Immigrant and Human Rights Center, provided the sample requests for U interim relief, appendices to Chapter 7. Nasha Vida, Sally Kinoshita, and Gail Pendleton wrote the Frequently Asked Questions on U Visas, another appendix to Chapter 7. Sarah Bronstein, of CLINIC, provided the sample SIJS application appearing as an appendix to Chapter 10. We also take this opportunity to acknowledge the invaluable work of the United States government in combating human trafficking and protecting its victims. While there is always more to be done, advocates and trafficking victims are aided by an outstanding group of individuals within the Department of Justice’s Office for Victims for Crime and Civil Rights Division, the U.S. Citizenship and Immigration Services’ headquarters and Vermont Service Center, and the Department of Health and Human Services’ Office of Refugee Resettlement. These individuals have been extraordinarily generous with their time, knowledge, and individual efforts on behalf of trafficking victims. Last, but certainly not least, we thank the trafficking victims with whom we have had the privilege of working. Their courage, perseverance, and hope have been inspirational to us. November 2004 Migration and Refugee Services, U.S. Conference of Catholic Bishops (MRS) Catholic Legal Immigration Network, Inc. (CLINIC) Legal Aid Foundation of Los Angeles (LAFLA) viii