House Report 108-264 - TRAFFICKING VICTIMS PROTECTION REAUTHORIZATION ACT OF 2003

[House Report 108-264]
[From the U.S. Government Publishing Office]

108th Congress Rept. 108-264
HOUSE OF REPRESENTATIVES
1st Session Part 2

======================================================================

TRAFFICKING VICTIMS PROTECTION REAUTHORIZATION ACT OF 2003

_______

September 29, 2003.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed

_______

Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following

R E P O R T

together with

[To accompany H.R. 2620]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the
bill (H.R. 2620) to authorize appropriations for fiscal years
2004 and 2005 for the Trafficking Victims Protection Act of
2000, and for other purposes, having considered the same report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment adopted by this committee is identical to the
text reported by the Committee on International Relations shown
in their report filed September 5, 2003 (Rept. 108-264, Part
1).

CONTENTS

Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 6
Committee Consideration.......................................... 6
Vote of the Committee............................................ 7
Committee Oversight Findings..................................... 7
New Budget Authority and Tax Expenditures........................ 7
Congressional Budget Office Cost Estimate........................ 7
Performance Goals and Objectives................................. 11
Constitutional Authority Statement............................... 11
Section-by-Section Analysis and Discussion....................... 11
Agency Views..................................................... 13
Changes in Existing Law Made by the Bill, as Reported............ 20
Markup Transcript................................................ 20

The Amendment

The amendment adopted by the Committee on the Judiciary is
identical to the text reported by the Committee on
International Relations shown in their report filed September
5, 2003 (H. Rept No. 108-264, Part 1).

Purpose and Summary

H.R. 2620 authorizes appropriations for, and makes minor
modifications to, the Trafficking Victims Protection Act of
2000, which was intended to prevent trafficking in persons, to
ensure punishment of traffickers, and to protect their victims.

Background and Need for the Legislation

BACKGROUND

Trafficking of persons has been a growing phenomenon within
and across international borders, including those of the United
States. Many trafficked persons are forced into the sex
industry. The rapid expansion of the sex industry and the low
status of women in many parts of the world have contributed to
a burgeoning of the trafficking industry. Trafficking of
persons also involves forced labor, involuntary servitude, or
slavery.
The Trafficking Victims Protection Act of 2000 \1\
(``TVPA'') was enacted to combat the trafficking of persons,
especially into the sex trade and slavery in the U.S. and
countries around the world through prosecution of traffickers
and through protection and assistance to victims of
trafficking.
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\1\ Pub. L. No. 106-386.
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The TVPA created a new nonimmigrant ``T'' visa for persons
who: (1) are victims of severe forms of trafficking in persons
(sex trafficking in which a commercial sex act is induced by
force, fraud, or coercion, or in which the person induced to
perform such acts has not attained 18 years of age, or the
recruitment, harboring, transportation, provision, or obtaining
of a person for labor or services, through the use of force,
fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery, (2) are in the
U.S. or at a U.S. port of entry on account of such trafficking,
(3) have complied with any reasonable request for assistance in
the investigation or prosecution of acts of trafficking or have
not attained 15 years of age, and (4) would suffer extreme
hardship involving unusual and severe harm upon removal from
the U.S. The TVPA also permits the Department of Homeland
Security (``DHS'') to grant a T visa, if necessary to avoid
extreme hardship, to the victim's spouse, children, and parents
if the victim is under 21 years of age, and the victim's spouse
and children if the victim is 21 years of age or older.
The TVPA precludes anyone from receiving a T visa if there
is substantial reason to believe that the person has committed
an act of a severe form of trafficking in persons. It also
places an annual cap of 5,000 on T visas for trafficking
victims and permits DHS to waive certain grounds of
inadmissibility.
The TVPA requires DHS to grant a trafficking victim
authorization to engage in employment in the United States
during the period the alien is in lawful temporary resident
status as a trafficking victim. It provides that DHS is not
prohibited from instituting removal proceedings against an
alien admitted with a T visa for conduct committed after the
alien's admission into the U.S., or for conduct or a condition
that was not disclosed to DHS prior to the alien's admission.
The TVPA permits DHS to adjust the status of a T visa
holder to that of a permanent resident if the alien: (1) has
been physically present in the U.S. for a continuous period of
at least three years since the date of admission, (2) has
throughout such period been a person of good moral character,
and (3) has, during such period, complied with any reasonable
request for assistance in the investigation or prosecution of
acts of trafficking, or would suffer extreme hardship involving
unusual and severe harm upon removal from the U.S. It also
permits DHS to adjust the status of the victim's spouse,
parent, or child, if admitted with a T visa, to that of an
alien lawfully admitted for permanent residence. DHS may waive
certain grounds of inadmissibility. An annual cap of 5,000 is
placed on adjustments of status for trafficking victims.
Finally, the TVPA excludes significant traffickers, persons
who knowingly assist them, and their spouses, sons, or
daughters who knowingly benefit from the proceeds of their
trafficking activities from entry into the U.S. A son or
daughter who was a child at the time he or she received the
benefit is exempt from such exclusion from the U.S.
It would be valuable at this point to recall language from
the Judiciary Committee's report on the TVPA:

Each year, tens of thousands of aliens pay smugglers
to be brought to the United States. Once here, they
must work long hours to pay off their smuggling debts
of tens of thousands of dollars. It is not the
committee's intent that such people receive the new
nonimmigrant ``T'' visa created by [the TVPA] or the
permanent residence provided by the [TVPA]. Otherwise,
[the TVPA] would become a general amnesty for aliens
who, we must remember, voluntarily sought out smugglers
to bring them illegally to the United States.
Additionally, the [TVPA] would actually encourage alien
smuggling by providing the expectation of eventual
amnesty.\2\
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\2\ H.R. Rep. No. 106-487, pt. II, at 17 (2000).

What has been the experience with T visas since enactment
of the TVPA? In January of 2002, the INS issued interim
regulation establishing the T visa program.\3\ Since the
regulation has gone into effect, and as of June 30, 2003, 172 T
visas have been granted to applicants and 13 have been denied
and 238 applications are currently pending.\4\
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\3\ 67 Fed. Reg. 4784 (2002) (codified at 8 C.F.R. sec. 214.11).
\4\ Data provided by DHS.
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The commentary to the regulations states that ``[i]n most
cases, aliens who are voluntarily smuggled into the United
States will not be considered victims of a severe form of
trafficking in persons.'' \5\ This is consistent with the
intent of the Committee. Then, the commentary states that:
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\5\ 67 Fed. Reg. at 4787.

However, individuals who are voluntarily smuggled
into the United States in order to be used for labor or
services may become victims of a severe form of
trafficking in persons, if, for example, after arrival
the smuggler uses threats of serious harm or physical
restraint to force the individual into involuntary
servitude, peonage, debt bondage, or slavery.\6\
---------------------------------------------------------------------------
\6\ Id.

Such a situation might be justification for the granting of
a T visa under certain circumstances. In order to give more
guidance as to which circumstances merit the granting of a T
visa, and which do not, the intent of the Judiciary Committee
is as follows: an alien who voluntarily comes to the U.S.--an
alien who makes use of a smuggler \7\--would only be eligible
for a T visa if he or she was then forced upon arrival in the
U.S. to perform labor which was illegal, such as prostitution
or trafficking in controlled substances, or was upon arrival in
the U.S. forcibly detained on a round the clock basis with no
prospect of release.
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\7\ A child who was sold to a smuggler by his or her parents would
not be considered to have voluntarily come to the U.S.
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The regulations provide that ``the [INS] has determined
that applicants may apply individually for T-1 nonimmigrant
status without requiring third party sponsorship from a law
enforcement agency, as is the case for the existing S
nonimmigrant status for alien witnesses and informants.'' \8\
The Judiciary Committee is quite concerned about this decision.
If the primary goal of the T visa is the prosecution of
traffickers, and an alien is only eligible for a T visa if he
or she has complied with any reasonable request for assistance
in the investigation or prosecution of his or her traffickers,
the Committee finds it hard to think of a situation that would
merit the granting of a T visa where the investigating or
prosecuting law enforcement agency was not willing to sponsor
the alien for a visa. Because the Committee cannot rule out
that such a situation might exist, it will not require that T
visa applications be filed by a law enforcement agency.
---------------------------------------------------------------------------
\8\ 67 Fed. Reg. at 4785.
---------------------------------------------------------------------------
However, if the aliens themselves are to be the applicants,
it is crucial that a law enforcement agency officially
certifies that the alien has complied with any reasonable
request for assistance in the investigation or prosecution of
the alien's traffickers. In drafting the regulations, the INS
created a ``Supplement B, Declaration of a Law Enforcement
Officer for Victim of Trafficking in Persons, of Form I-914,
Application for T Nonimmigrant Status,\9\ in which the
investigating or prosecuting law enforcement agency certifies
that an alien has complied with any reasonable request for
assistance. The commentary to the regulations states that:
---------------------------------------------------------------------------
\9\ See id. at 4819-20.

A [law enforcement agency] endorsement is not a
mandatory part of a T-1 nonimmigrant status
application. * * * If the applicant chooses not to
include an * * * endorsement, the [DHS] will make an
independent assessment of any credible evidence
presented * * * to determine if the applicant meets the
cooperation with law enforcement requirement.\10\
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\10\ Id. at 4788. See 8 C.F.R. sec. 214.11(h).

This is inconsistent with the intent of the Judiciary
Committee. If the investigating or prosecuting agency does not
believe that the alien has provided adequate assistance, the
alien will not be eligible for a T visa. In order to be
eligible for a T visa, an applicant must include with his or
her application a form, such as Supplement B, in which the
investigating or prosecuting law enforcement agency has
certified that the alien has complied with any reasonable
request for assistance.\11\
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\11\ H.R. 2620 allows a state or local law enforcement agency, as
well as a federal agency, to be the investigating or prosecuting
agency. Since immigration is a purely federal function, DHS will retain
the right to decide that an alien has not complied with any reasonable
request for assistance even if a state or local law enforcement agency
has submitted a form certifying that such assistance has been provided.
---------------------------------------------------------------------------
Finally, it is the intent of the Committee that
applications for T visas be adjudicated at the district office
level, and not by a service center. A district office possesses
distinct advantages: for instance, it is situated near where
the trafficking crime has taken place and is in a
betterposition to have knowledge of the trafficking activities in the
area, and it can easily interview in person all the relevant
parties.\12\
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\12\ The regulations provide that DHS may require a personal
interview of the T visa applicant. See 8 C.F.R. 214.11(d)(6). It is the
intent of the Committee that such an interview be required.
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H.R. 2620

H.R. 2620 authorizes appropriations for, and makes minor
modifications to, the Trafficking Victims Protection Act of
2000.
Immigration provisions
H.R. 2620 would make the following modifications to the
immigration provisions of the TVPA:
Aliens could qualify for T visas by cooperating
with state and local law enforcement agencies well as federal
agencies. The state or local agency would have to be
investigating or prosecuting the alien's traffickers through
relevant state law, such as anti-trafficking or kidnapping
laws.
The age of aliens who could receive T visas
without cooperating with law enforcement authorities would be
raised from under 15 years of age to under 18 years of age.
If an alien receiving a T visa was under 21,
unmarried siblings under 21 would be added to the list of
family members who could also receive T visas.
The public charge ground of inadmissibility would
never apply to aliens seeking T visas.
In order to protect traffickers from obtaining the
applications for T visas of the aliens they trafficked, the
dissemination of information that relates to an applicant would
be extremely limited. The State Department and DHS could not
permit use by or disclosure to anyone other than a sworn
officer or employee of the two departments for legitimate
departmental purposes of such information. Certain exceptions
are made, such as disclosure to a judicial body or to law
enforcement officials to be used for legitimate law enforcement
purposes.
Criminal law provisions
H.R. 2620 would make the following modifications to the
criminal law provisions in the TVPA:
The bill would amend 18 U.S.C. sec. 1591, dealing
with the prosecution of traffickers, by striking ``in or
affecting interstate commerce and inserting ``in or affecting
interstate or foreign commerce, or within the special maritime
and territorial jurisdiction of the United States.'' This
change is an expansion of Federal jurisdiction to cover foreign
commerce situations and open seas situations.
Currently the law provides that ``whoever
knowingly * * * recruits, entices, harbors, transports,
provides, or obtains by any means a person * * * knowing that
force, fraud, or coercions will be used to have the person
engage in a commercial sex act'' has committed a crime.
However, currently punishment is only provided for in certain
instances if the alien was transported for the purposes of
trafficking. The subsection clarifies that punishment is
provided for if the alien has been recruited, enticed,
harbored, transported, provided, or obtained, for the purposes
of trafficking
The bill adds three new predicate crimes to the
RICO statute. The first relates to forced labor, the second
relates to slavery, and the third relates to sex trafficking of
children. Congress enacted the Racketeer Influenced and Corrupt
Organization (RICO) provisions as part of the Organized Crime
Control Act of 1970 to increase civil and criminal consequences
for crimes under certain circumstances. RICO was created to
cover those activities which Congress characterized as
organized crime. RICO crimes are punishable by fines,
forfeiture, and imprisonment for not more than 20 years or life
if a predicate offense carries such a penalty. Civil RICO
allows the injured person to recover treble damages, costs, and
attorneys' fees.
Courts provisions
H.R. 2620 makes the following modification to the courts
provisions of the TVPA:
Three provisions of title 18 of the U.S. Code
criminalize specific acts of trafficking. Section 1589
prohibits coercion and other acts resulting in forced labor;
section 1590 forbids trafficking with respect to peonage,
slavery, involuntary servitude, or forced labor; and section
1591 forbids sex trafficking. Transgressors convicted of any of
these offenses may be fined or imprisoned or both under title
18. The bill creates a civil cause of action for any victim of
a violation of sections 1589, 1590 or 1591. Under the
provision, a civil suit may be filed ``in any appropriate
[U.S.] district court[, which would be empowered to] award
actual damages, punitive damage, reasonable attorneys' fees,
and other litigation costs reasonably incurred.''

Hearings

No hearings were held in the Committee on the Judiciary on
H.R. 2620.

Committee Consideration

On September 24, 2003, the Committee met in open session
and ordered favorably reported the bill H.R. 2620 with an
amendment by voice vote, a quorum being present.

Vote of the Committee

In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, theCommittee notes that there
were no recorded votes during the Judiciary Committee's consideration
of H.R. 2620.

Committee Oversight Findings

In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.

New Budget Authority and Tax Expenditures

Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because the provisions of H.R.
2620 within the jurisdiction of the Judiciary Committee do not
provide new budgetary authority or increased tax expenditures.

Congressional Budget Office Cost Estimate

In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to H.R. 2620, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974:

U.S. Congress,
Congressional Budget Office,
Washington, DC, September 26, 2003.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2620, the
Trafficking Victims Protection Reauthorization Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Sunita
D'Monte (for federal costs), and Paige Piper/Bach (for the
private-sector impact).
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.

H.R. 2620--Trafficking Victims Protection Reauthorization Act of 2003

Summary: H.R. 2620 would reauthorize several programs
within the Departments of State, Labor, Justice, and Health and
Human Services, and within other agencies that combat
trafficking in persons. It would expand the current federal
prohibitions against such trafficking and would make more
victims of trafficking and their relatives eligible to enter
and remain in the United States.
The bill would authorize appropriations of almost $106
million a year in 2004 and 2005. CBO estimates that
implementing the bill would cost $197 million over the 2004-
2008 period, assuming appropriation of the authorized amounts.
The bill also contains provisions that would affect direct
spending and revenues, but CBO estimates these provisions would
not have a significant effect.
H.R. 2620 would impose a private-sector mandate, as defined
in the Unfunded Mandates Reform Act (UMRA), on airlines
organized under the laws of the United States and other
airlines that operate in the United States. CBO expects that
the direct costs of the mandate would fall well below the
annual threshold established by UMRA ($117 million in 2003,
adjusted annually for inflation). H.R. 2620 contains no
intergovernmental mandates as defined in UMRA and would impose
no significant costs on state, local, or tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 2610 is shown in the following table.
The costs of this legislation fall within budget functions 150
(international affairs), 500 (education, employment, training,
and social services), 550 (health), 600 (income security), and
750 (administration of justice).

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2004 2005 2006 2007 2008
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION \1\

Overseas Assistance:
Authorization Level............................................ 61 61 0 0 0
Estimated Outlays.............................................. 8 32 37 21 10
Department of Health and Human Services:
Authorization Level............................................ 15 15 0 0 0
Estimated Outlays.............................................. 5 10 8 4 2
Department of Justice:
Authorization Level............................................ 15 15 0 0 0
Estimated Outlays.............................................. 4 10 11 5 0
Department of Labor:
Authorization Level............................................ 10 10 0 0 0
Estimated Outlays.............................................. * 4 9 6 1
Department of State:
Authorization Level............................................ 5 5 0 0 0
Estimated Outlays.............................................. 4 5 1 * *
--------------------------------------------
Total:
Authorization Level............................................ 106 106 0 0 0
Estimated Outlays.............................................. 21 61 66 36 13
----------------------------------------------------------------------------------------------------------------
\1\ In addition to effects on spending subject to appropriation, CBO estimates enacting H.R. 2620 would have an
insignificant effect on direct spending and receipts.

ANote.--*=less than $500,000.

Spending subject to appropriation

The bill would authorize appropriations of about $106
million a year in 2004 and 2005 for various programs to combat
trafficking in persons. This compares to less than $60 million
in funding for similar programs in 2003, not counting spending
by the Department of Labor that may benefit individual victims
of trafficking under more general authority. Assuming that H.R.
2620 will be enacted late in calendar year 2003, that the
amounts authorized are appropriated near the start of each
fiscal year, and that outlays follow historical spending
patterns, CBO estimates that implementing the bill would cost
$21 million in 2004 and $197 million over the 2004-2008 period.
Overseas Assistance. The bill would authorize
appropriations in 2004 and 2005 of $30 million a year to the
Secretary of State and $30 million a year to the President for
programs to prevent trafficking in persons, to protect victims
of trafficking, and to assist foreign states in meeting minimum
standards for the elimination of trafficking. In addition, the
bill would authorize $0.3 million a year in 2004 and 2005 for
voluntary contributions to international organizations to
prevent such trafficking and assist in related legal reform,
$0.25 million a year in 2004 and 2005 for training at the
International Law Enforcement Academies, and $0.3 million a
year in 2004 and 2005 for research on domestic and
international trafficking in persons. CBO estimates that
implementing these provisions would cost $8 million in 2004 and
$108 million over the 2004-2008 period.
Department of Health and Human Services. The bill also
would authorize appropriations of $15 million in 2004 and 2005
for refugee assistance to trafficking victims. Under current
law, the department plans to spend $10 million for these
activities in 2003. Assuming appropriation of the authorized
amounts and that spending from the authorized amounts would be
similar to the larger refugee assistance programs administered
by the department, CBO estimates that this assistance would
cost $5 million in 2004 and $29 million over the 2004-2008
period.
Department of Justice. Section 7 would authorize
appropriations of $15 million a year in 2004 and 2005 for the
Attorney General to provide assistance to victims of
trafficking living in the United States. CBO estimates that
implementing this section would cost $30 million over the 2004-
2008 period, assuming appropriation of the authorized amounts.
Department of Labor. H.R. 2620 would authorize
appropriations of $10 million in 2004 and 2005 for services to
trafficking victims. Services for these refugees are currently
provided through the Employment and Training Administration,
and CBO assumes that spending from the authorized amounts would
be similar to those employment and training programs. Assuming
appropriation of the authorized amounts, CBO estimates that
providing these services would cost $500,000 in 2004 and $20
million over the 2004-2008 period.
Department of State. Section 7 would authorize
appropriations of $5 million each year in 2004 and 2005 to the
State Department for the expenses of monitoring, combating, and
reporting on trafficking in persons. Assuming appropriation of
the authorized amounts, CBO estimates that implementing this
section would cost $10 million over the 2004-2008 period.

Direct spending and revenues

Enacting H.R. 2620 also could affect direct spending and
revenues; but CBO estimates that any such changes would not be
significant.
Medicaid and Other Entitlement Benefits. Certifications
under the Trafficking Victims Protection Act have averaged
fewer than 15 individuals a month since the program began early
in fiscal year 2001. Only a minority of persons certified in
2001 applied for benefits in that year--the only year for which
these data are available--and fewer still actually received
Medicaid, Food Stamps, or other entitlement benefits. Although
the provisions in H.R. 2620 could increase the number of
individuals applying for and becoming entitled to certain
federal public benefits, CBO expects the changes would result
in few new beneficiaries for these benefits. Thus, CBO
estimates that under H.R. 2620 any increase in direct spending
for these benefit programs would not be significant.
Immigration Status for Certain Victims. The bill would make
it easier for more victims of trafficking and their relatives
to enter and remain in the United States. Costs to the Bureau
of Citizenship and Immigration Services for adjudicating such
cases would be funded from fees collected by the agency. CBO
estimates that any such costs would not be significant because
of the relatively small number of trafficking victims likely to
be involved.
Civil and Criminal Fines. The bill would expand the current
federal crimes relating to trafficking in persons. Because
those prosecuted and convicted under the bill could be subject
to civil and criminal fines, the government might collect
additional fines if the bill is enacted. Collection of civil
fines are recorded in the budget as governmental receipts
(revenues) and are deposited in the general fund. Collections
of criminal fines are recorded as receipts and are deposited in
the Crime Victims Fund and later spent. CBO expects that any
additional receipts and direct spending would not be
significant.
Estimated impact on state, local, and tribal governments:
H.R. 2620 contains no intergovernmental mandates as defined in
UMRA and would impose no significant costs on state, local, or
tribal governments.
Estimated impact on the private sector: H.R. 2620 would
impose a new private-sector mandate, as defined in UMRA, on
airlines organized under the laws of the United States and
other airlines that operate in the United States. The bill
would require such airlines to develop and disseminate
materials alerting travelers that sex tourism, as defined in
the bill, is illegal, will be prosecuted, and presents dangers
to those involved. Based on information from industry and
government sources, CBO expects that the direct costs of the
mandate would fall well below the annual threshold established
by UMRA ($117 million in 2003, adjusted annually for
inflation).
Previous CBO estimate: On August 13, 2003, CBO transmitted
a cost estimate for H.R. 2620, the Trafficking Victims
Protection Reauthorization Act of 2003, as ordered reported by
the House Committee on International Relations on July 23,
2003. The two versions of the bill and their estimated costs
are identical.
Estimate prepared by: Federal Costs: Department of State--
Sunita D'Monte; Overseas Assistance--Joseph C. Whitehill;
Immigration and Department of Justice--Mark Grabowicz;
Medicaid--Eric Rollins; and Other Programs--Paul R. Cullinan.
Impact on State, Local, and Tribal Governments: Melissa
Merrell. Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.

Performance Goals and Objectives

In compliance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee believes that
the funding authorized should be used to eliminate trafficking
and assist its victims.

Constitutional Authority Statement

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article 1, section 8 of the Constitution.

Section-by-Section Analysis and Discussion

The following is a discussion of the most important of the
provisions of the bill that fall within the Judiciary
Committee's jurisdiction. A full section by section analysis
can be found in the report of the Committee on International
Relations (H. Rept. No. 108-264, pt. 1).

Section 4. Enhancing protection for trafficking victims

Subsection (a)(4) creates a civil cause of action for any
victim of a violation of 18 U.S.C. sections 1589 (forced
labor), 1590 (trafficking) , or 1591 (sex trafficking). Under
the provision, a civil suit may be filed ``in any appropriate
[U.S.] district court[, which would be empowered to] award
actual damages, punitive damage, reasonable attorneys' fees,
and other litigation costs reasonably incurred.''
Subsection (b)(1) amends section 101(a)(15)(T) of the
Immigration and Nationality Act to clarify that the assistance
an alien seeking a T visa provides in the investigation or
prosecution of acts of trafficking may be made to state and
local, as well as to federal, law enforcement agencies; to
raise the age of aliens who can receive T visas without having
provided assistance in the investigation or prosecution of acts
of trafficking from under 15 years of age to under 18 years of
age; and to provide T visas where necessary to avoid extreme
hardship to unmarried siblings under 18 years of age of primary
T visa recipients who are under 21 years of age.
Subsection (b)(2) amends section 214(n)(3) of the INA to
clarify that the 5,000 annual visa cap for T visa recipients
does not apply to the siblings of primary T visa recipients.
Subsection (b)(3) amends section 245(l) of the INA to
provide that an alien provided a T visa as the sibling of a
primary T visa recipient can have his or her status adjusted to
permanent residence if meeting certain criteria.
Subsection (c) amends section 214(n) of the INA to provide
that an alien may receive a T visa regardless of his or her
inadmissibility as a public charge (section 212(a)(4) of the
INA).
Subsection (c) also amends section 214(n) of the INA to
provide that in no case may the State Department or the
Homeland Security Department permit use by, or disclosure to,
anyone, other than a sworn officer or employee of one of such
Departments for legitimate Department purposes, of any
information that relates to an alien who has properly filed a
bona fide application for, or been granted, a T visa. This
limitation shall not apply if the alien is an adult and has
waived the limitation, and it shall terminate when the
application is denied and all opportunities for appeal have
been exhausted. The two Departments may each provide for the
disclosure of such information in the same manner and
circumstances as census information may be disclosed by the
Commerce Department under section 8 of title 13, U.S. Code, to
law enforcement officials to be used solely for a legitimate
law enforcement purpose, and in connection with judicial review
for a determination in a manner that protects its
confidentiality. These amendments shall not be construed to
supersede section 222(f) of the INA (regarding records of the
State Department and of diplomatic and consular offices).
Whoever willfully uses, publishes, or permits information to be
disclosed in violation of these restrictions shall be subject
to appropriate disciplinary action and subject to a civil
monetary penalty of not more than $5,000 for each violation.

Section 5. Enhancing prosecutions of traffickers

Section (5)(a), dealing with the prosecution of
traffickers, amends 18 U.S.C. section 1591 by striking ``in or
affecting interstate commerce'' and inserting ``in or affecting
interstate or foreign commerce, or within the special maritime
and territorial jurisdiction of the United States.'' This
change is an expansion of Federal jurisdiction to cover foreign
commerce situations and open seas situations. The subsection
also makes a conforming amendment. Currently the law provides
that ``whoever knowingly * * * recruits, entices, harbors,
transports, provides, or obtains by any means a person * * *
knowing that force, fraud, or coercions will be used to have
the person engage in a commercial sex act'' has committed a
crime. However, currently, punishment is only provided for in
certain instances if the alien was transported for the purposes
of trafficking. The subsection clarifies that punishment is
provided for if the alien has been recruited, enticed,
harbored, transported, provided, or obtained, for the purposes
of trafficking.
Section (5)(b) adds three new predicate crimes to the RICO
statute. Section 1589 of title 18, U.S. Code, prohibits
coercion and other acts resulting in forced labor; section 1590
forbids trafficking with respect to peonage, slavery,
involuntary servitude, or forced labor; and section 1591
forbids sex trafficking.

Section 7. Authorization of appropriations; related matters

Section 7 provides authorization for the State Department
to carry out section 134 of the Foreign Assistance Act of 1961
to authorize International Law Enforcement Academies (``ILEA'')
to train prosecutors and law enforcement regarding trafficking.
ILEAs offer a law enforcement program targeted at mid-level
officials in the police and criminal justice services of
countries throughout the world. The Department of State works
with the Departments of Justice and Treasury in running these
programs. The Bureau for International Narcotics and Law
Enforcement Affairs runs the State ILEA programs.

Section 8. Technical corrections

Subsection 8(a) makes technical changes in the INA.
Subsection 8(b) makes a technical change in the TVPA to a
reference to the INA.

AGENCY VIEWS

Department of Justice,
Office of Legislative Affairs,
Washington, DC, September 24, 2003.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This letter presents the views of the
Department of Justice on H.R. 2620, the ``Trafficking Victims
Protection Reauthorization Act of 2003.'' We support
reauthorization of this important program, which is aimed at
strengthening our efforts to combat trafficking in persons.
However, we have several concerns about the bill, particularly
the way it would alter the current statutory standard for
certifying trafficking victims as eligible to receive benefits
and services, the need for confidentiality provisions in T visa
applications, and a new private right of action provision. In
addition, we recommend adding the new trafficking crimes as
RICO predicates and providing for the death penalty in human
trafficking cases where the death of a victim results.

Subsection 3(a): Border Interdiction

Subsection 3(a) 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 to non-
governmental organizations (``NGOs'') to fund training for
trafficking survivors who, in turn, would ``educate and train
border guards and officials, and other local law enforcement
officials.* * *'' Specifically, this subsection would establish
grants to monitor ``the implementation of border interdiction
programs, including helping in the identification of such
victims.* * *''
While we support training border and local officials in the
identification of trafficking victims, we believe that
subsection 3(a) is unnecessary and would potentially undermine
the ability of Federal law enforcement to conduct border
interdiction. We would therefore urge striking this subsection
from the bill. Border security and intelligence gathering are
Federal law enforcement functions. The TVPA mandated training
for border officials and other Federal law enforcement officers
on the identification of and assistance to trafficking victims,
and the U.S. Government carriers it out.\1\ While NGOs have an
important role to play in helping trafficking victims, it
remains nonetheless the purview of Federal law enforcement,
while carrying out their law enforcement duties, to identify
victims at the border.
---------------------------------------------------------------------------
\1\ The Departments of State and Justice articulated their plans
for U.S. Government anti-trafficking training responsibilities in the
Federal Register. See 66 Fed. Reg. 38514 (July 24, 2001).
---------------------------------------------------------------------------
In addition, we do not believe that monitoring border
interdiction programs is the most effective use of Federal
funding. Because it is not always clear who at the border is a
``trafficking victim,'' as a victim must be destined for an
exploitative labor or commercial sexual situation in order to
have been ``trafficked,'' the money appropriated for
interdiction programs would be better spent enhancing our
official border control efforts and increasing our ability to
investigate and prosecute human trafficking.
The provision does not clarify to what extent NGOs would
monitor these programs or what authority NGOs would have to
attempt to influence these programs. 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 law 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 to any functions performed by such
organizations or local law enforcement.
We note that use of the term ``transit shelter'' implies
that the victims are 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 trafficking victims who have been identified. Most
of them choose to access immigration relief available under the
TVPA, rather than self-repatriation.
If Congress chooses to proceed with this provision despite
our opposition, we suggest amending the section on border
interdiction by inserting (in the bill, following the first
occurrence of the word ``interdiction'' in the first sentence)
``, including'', thereby authorizing support to NGO programs,
while not strictly limiting such programs solely to NGOs.
Subsection 3(a) also would ``ensure that any program
established under this subsection provides the opportunity for
any trafficking victims who is freed to return to his or her
previous residence if the victim so chooses.'' Guaranteeing
immediate return could undermine law enforcement needs, which
often will require the presence of the victim in the country as
a material witness or for other purposes. In the event the
Committee retains this subsection, we urge that it contain a
mechanism to ensure that the interests of law enforcement be
protected in any provision for the return of trafficking
victims to their own or third countries.

Subsection 3(b): Termination of Certain Grants, Contracts and
Cooperative Agreements

The State Department will be submitting a separate views
letter on H.R. 2620, in which it will address concerns
regarding subsection 3(b). We simply note that we defer to, and
concur in, the State Department's position.

Subsections 4(a)(3) and 4(b)(1)(a): State and Local Law Enforcement

Subsection 4(a)(3) would broaden the availability of
certification of trafficking victims (as would section
4(b)(1)(a) in similar ways) by permitting individuals to obtain
certification as trafficking victims based on endorsements made
by State and local law enforcement agencies (in addition to
Federal law enforcement). We have reservations about altering
the current statutory standard for the certification of victims
to receive benefits and services.
In our experience, accurate certification requires some
investigation to determine whether the victim actually has
suffered as the result of conduct that satisfies the elements
of the TVPA. This investigation is best performed by trained
investigators who are familiar with the TVPA. Currently, the
Attorney General is consulted on whether a trafficking victim
is assisting in an investigation or prosecution of human
trafficking and a Federal law enforcement agency is in charge
of the investigation and prosecution. We are concerned that
State and local agencies may lack the resources or expertise to
conduct the necessary inquiry. Only two States (Washington and
Texas) have passed anti-trafficking laws. Hence, the vast
majority of State and local law enforcement officials do not
have the jurisdiction to investigate human trafficking. It is
unclear whether State and local officials could determine that
victims were cooperating with the investigation or prosecution
of human trafficking, because the investigation would most
likely be Federal. Further confusion may arise due to
overlapping jurisdiction in cases in which State and local
officials could be investigating activity that might constitute
human trafficking under the Federal definition but that under
State law would violate only non-trafficking laws, such as
kidnaping.
We do not believe that these changes would result in
substantial benefits in enforcing the anti-trafficking laws.
Moreover, we are concerned about forcing the Department of
Health and Human Services, when certifying trafficking victims,
to reconcile possibly conflicting factual conclusions made by
various Federal, State and local law enforcement authorities.
For example, an individual might be cooperating with local law
enforcement in a human trafficking investigation, but the
Federal prosecutors, who are investigating the underlying
activities, might have information that the victim does not
meet the definition of a victim of a ``severe form of
trafficking in persons,'' the statutory standard for receipt of
benefits. We note that the bill would continue to require the
Secretary of Health and Human Services to consult with the
Attorney General in making trafficking victim certifications,
which we strongly support. Continuing to limit the endorsements
to Federal law enforcement is more efficient and ensures
uniformity in determining whether victims are cooperating with
(the likely) Federal investigation or prosecution.
Congress may be looking to the Battered Immigrant Women
Protection Act of 2000, Sec. 1512 (regarding the U visa), Pub.
L. 106-386, Div. B., Tit. V, as a model for allowing Federal,
State or local officials to determine victimization and
cooperation. Unlike that Act, where crimes related to battery
are also crimes at the State level, enforcement against human
trafficking remains predominantly a Federal sphere of activity.
In many cases, it may be easier for State and local law
enforcement to identify a crime that also violates State law
than it would be to identify human trafficking. Therefore, we
do not believe the U visa to be an analogous situation or a
valid model to follow in trafficking cases.
We also are wary that this subsection would create the
potential for forum shopping. We already are aware of persons
who claim to be victims contacting multiple Federal agencies in
the hope that one of them will support that person's request
for certification from the Department of Health and Human
Services. Extending the authority to determine that an
individual meets one of the key criteria for certification to
the 17,000 State and local law enforcement agencies in the
country will exacerbate this situation. Under current law,
Federal law enforcement analyzes claims of victimization and
cooperation with law enforcement and ensures that certification
is requested for legitimate, cooperating victims, so that such
victims can receive the benefits mandated by the TVPA.
We believe this provision would cause confusion and
potentially place Federal law enforcement against State and
local law enforcement in determinations regarding cooperation
in what is likely to be a Federal preserve.

Subsection 4(a)(4): Private Right of Action

The Department of Justice opposes the private right of
action that would be established by subsection 4(a)(4), because
it is unnecessary and could be accomplished by amending the
Racketeer Influenced and Corrupt Organizations (RICO) Act (18
U.S.C. Sec. Sec. 1589-1594).
Creation of a private right of action is a complex
undertaking that should be approached only after careful
consideration of collateral consequences and the appropriate
standard for establishing a civil violation. It is common for
civil rights violations to give rise to both civil and criminal
sanctions. While these arrangements have produced some
complexity in criminal prosecutions, Congress has concluded
that the additional enforcement activity resulting from private
civil actions is worthwhile. However, many such statutory
schemes establish different elements for civil and criminal
violations. If Congress believes that a civil action for human
trafficking might be appropriate, it should consider in depth
the conduct that should trigger a civil violation and the
processes that would be helpful in protecting criminal
enforcement.
We note that the amendment to the RICO Act included in H.R.
2620 would allow civil RICO claims for human trafficking, which
may cover the universe of civil proceedings Congressis
intending to extend to trafficking victims.
The creation of a federal civil remedy, one that would
include treble damages, is best accomplished through the
amendment to RICO. If the purpose is to establish a new Federal
tort, we question the need for it. The entire range of
trafficking behaviors is already captured under State tort law,
under which a victim may already recover. We do not see a need
to recreate such a scheme at the Federal level.
If Congress concludes that a private right of action beyond
RICO is warranted in these circumstances, we suggest several
improvements to this subsection. The subsection does not
indicate who can be sued. For example, the class of defendants
needs to be defined. Foreign governments with lax border
enforcement policies could be called into court under the
provision, as could anyone linked to the trafficking. Even
prosecutors could face a civil suit if a trafficking victim
believed that the prosecutor did not pursue the trafficking
prosecution with sufficient diligence. Presumably the
traffickers who knew (or ought to have known) about the
victim's plight would be the intended class of defendants.
The subsection should stay all pending civil actions in the
wake of a criminal prosecution. Notably, in the context of 18
USC Sec. 2255 (``civil remedy for personal injuries''), all
civil actions are stayed pending the completion of a criminal
action. See also 18 USC Sec. 3509(k) (``child victims' and
child witnesses' rights'') (``If, at any time that a cause of
action for recovery of compensation for damage or injury to * *
* a child exists, a criminal action is pending which arises out
of the same occurrence and in which the child is the victim,
the civil action shall be stayed until the end of all phases of
the criminal action.* * *'').
Without delineating who can be sued and whether the suit
would be stayed until a prosecution was complete, this
provision would provide unbridled discretion to trafficking
victims to sue whomever they feel has victimized them and could
hinder prosecutors' abilities to try a case unfettered by the
complications of civil discovery. While perhaps unlikely, this
provision could become an incentive for victims to skip
criminal prosecution and go directly to Federal court to sue
their traffickers for damages. We believe that prosecutions
should take priority over civil redress and that prosecutions
should be complete prior to going forward with civil suits.

Subsection 4(c): Waiver of Public Charge Ground for Inadmissibility

It is not clear what benefits would accrue from the
amendments subsection 4(c) would make to Sec. 214(n) of the
Immigration and Nationality Act (INA) to disallow consideration
of the ``public charge'' grounds for inadmissibility to the
United States based on an approved T visa. The TVPA allows the
Attorney General (now the Secretary of Homeland Security) to
grant waivers generously for the public charge grounds of
inadmissibility under Sec. 212(d) of the INA and does not
require that the public charge activity be linked to the
trafficking victimization (as it did with regard to the
criminal grounds, see 212(d)(13)(B)(ii)). That having been
said, we believe the drafters probably intended to amend
Sec. 212(d)(13)(B)(i) to require DHS to waive the public charge
ground in determining whether to grant the T visa application,
rather than subsection 214(n).

Subsection 4(c): Penalties for Unlawful Disclosure of Information

We strongly oppose the new provisions governing
confidentiality of T visa applications, and consequent
penalties for unlawful disclosure of information, as
unnecessary and inappropriate. Section 222(f) of the
Immigration and Nationality Act already deems as confidential
(with certain exceptions) information related to the issuance
or denial of visas.
We are unaware of any inappropriate disclosures of
information during the T visa process. That said, this
provision does appear to preclude Federal law enforcement
officials from reviewing T visa applications for the purpose of
investigating or prosecuting human trafficking crimes. Proposed
INA subsection 214(n)(5) states that ``in no case'' may DHS or
Department of State officials ``permit use by, or disclosure
to, anyone, other than a sworn officer or employee of one of
such Departments for legitimate Department purposes, of any
information that relates to an alien'' who has filed a T 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) that may cover prosecutors' discovery
obligations (``may each provide, in each Secretary's
discretion, for the disclosure of information described in
subparagraph (A) to law enforcement officials to be used solely
for a legitimate law enforcement purpose'' [followed by a
series of examples unrelated to prosecutors' discovery
obligations]). However, it is not clear that this would allow
for disclosure to defense counsel. And if it does not, then it
might result in dismissal of the indictment because prosecutors
could not comply with disclosure obligations. Moreover, it is
unclear whether such a provision would require regulations to
be issued by DHS or the State Department, that could
potentially affect prosecutors' abilities to meet discovery
obligations.
This provision does not appear to permit compliance with a
judge's order to produce certain ``confidential'' information.
Subparagraph (E) states ``Subparagraph (A) shall not be
construed as preventing disclosure of information in connection
with judicial review of a determination in a manner that
protects the confidentiality of such information.'' This
language appears to provide for review of records in the case
of judicial review of the applications, but not was regard to
other forms of judicial requests.
Finally, these confidentiality provisions allow a penalty
of $5,000 for each disclosure. We believe it unwise to subject
prosecutors (or DHS or State Department personnel who allow
them access) to these sanctions if they legitimately disclose
information in the course of a prosecution that is not deemed
to be a ``law enforcement purpose.''
If this provision is to remain, in carrying out the
certification responsibilities in section 107(b)(1)(E) of the
TVPA, the Department of Health and Human Services must be able
to receive information from DHS regarding a person's bona fide
application for a T via. We recommend that a new subparagraph
(I) be added to section 214(n)(5) of the Immigration and
Nationality Act, as added by the bill. The new subparagraph
would read as follows:

``(I) The Secretary of Homeland Security may disclose
information described in subparagraph (A) to the
Department of Health and Human Services for the
purposes of implementing section 107(b)(1)(E) of the
Trafficking Victims Protection Act of 2000.''.

In summary, provisions and safeguards exist for sharing
visa information for routine law enforcement activity. The
provisions of this subsection would impede domestic and
international criminal investigations to identify and gather
evidence against traffickers.

Section 5: Enhancing Prosecutions of Traffickers (18 USC Amendments)

Subsection 5(a) would extend the jurisdictional nexus of 18
U.S.C. Sec. 1591 to include foreign commerce and the special
maritime jurisdiction of the United States; these changes are
technical fixes to the original TVPA. We welcome these
jurisdictional changes that will enhance prosecutors' ability
to bring human trafficking cases.

Trafficking Crimes as RICO Predicates

We support the inclusion of human trafficking crimes as
RICO predicates. These crimes occasionally are perpetrated by
organized groups that RICO was intended to target. Indeed, the
RICO predicate list in 18 U.S.C. Sec. 1961(1) includes various
offenses that overlap with human trafficking offenses,
including the substantive offenses in the peonage and slavery
chapter of the criminal code (18 U.S.C. Sec. Sec. 1581-88) and
the main prostitution offenses (18 U.S.C. Sec. Sec. 2421-24).
This existing offense coverage under RICO is useful.
Furthermore, we believe adding human trafficking offenses to
RICO's coverage would prove to be beneficial.
We would suggest two changes to the RICO section as
currently drafted. In section 5(b),which amends 18 U.S.C.
Sec. 1961(1) (definition of ``racketeering activity'') by
adding the three criminal offenses related to trafficking in
persons, we suggest that the amendatory language be inserted in
section 1961(1) after ``sections 1581-1588 (relating to peonage
and slavery),'' instead of after ``murder-for-hire),'' as
proposed. The offenses that define ``racketeering activity''
should be placed in numerical order and with offenses in the
same chapter of title 18 of easy reference. As proposed, the
three offenses found in Chapter 77 (peonage and slavery) of
title 18 have been inexplicably inserted in the list of
statutes without consideration of their subject matter. Instead
of being inserted to follow other offenses in Chapter 77, they
have been inserted after ``section 18 U.S.C. 1958 (relating to
use of interstate commerce facilities in the commission of
murder-for-hire),'' an offense in Chapter 95 of title 18. We
would also suggest that the Chapter 77 offenses be listed
together. Therefore section 5(b) would now read:

``(b) Definition of Racketeering Activity.--Section
1961(1) of title 18, United States Code, is amended by
striking `sections 1581-1588 (relating to peonage and
slavery)' and by inserting after `section 1546
(relating to fraud and misuse of visas, permits, and
other documents)' the following: ``section 1581-1591
(relating to peonage, slavery, and trafficking in
persons,''.

Title of Chapter 77

As a final edit to Chapter 77, we would suggest adding
``trafficking in persons'' to its title, which would now read
``Chapter 77--Peonage, Slavery, and Trafficking in Persons''.
Parallel edits would also have to be made to the ``Title 18
Crimes and Criminal Procedure'' list of ``Part 1--Crimes''.

Death Penalty for Trafficking Crimes

Questions also have arisen regarding the justification for
the discrepancy between alien smuggling crimes and human
trafficking crimes with regard to death penalty eligibility.
Because we do not see a logical justification for the
discrepancy, we support equalizing the penalties between the
two. Therefore, we would suggest that this bill include amended
criminal provisions extending death penalty eligibility to the
relevant human trafficking crimes that result in the deaths of
trafficking victims, namely 18 U.S.C. Sec. Sec. 1581, 1583,
1584, 1587, 1589, 1590, and 1591. We recognize that these
provisions would have to interact with 18 U.S.C. Sec. 3591
(``sentence of death'').

Subsection 7(7): Restriction on Organizations

While we are not prepared to take the position that
subsection 7(7) (proposed section 113(g)(2) of the TVPA) in
unconstitutional, we do think that it raises serious First
Amendment concerns and may not withstand judicial scrutiny. We
therefore recommend that this provision be struck from the
bill.
The Federal Government may, consistent with the First
Amendment, prohibit private organizations from using Federal
funds to promote, support, or advocate the legalization or
practice of prostitution. See Rust v. Sullivan, 500 U.S. 173,
196-198 (1991). There is substantial doubt, however, as to
whether the Federal Government may restrict a domestic grant
recipient participating in a Federal anti-trafficking program
from using its own private, segregated funds to promote,
support, or advocate the legalization or practice of
prostitution, even if such a restriction applies only to those
grant recipients providing assistance to victims of severe
forms of trafficking. See Rust, 500 U.S. at 197; FCC v. League
of Women Voters, 468 U.S. 364, 399-401 (1984). As a result,
because this provision of H.R. 2620 would, in effect, prevent
any organization receiving Federal funds to implement a program
targeting victims of severe forms of trafficking from using its
own private funds to promote, support, or advocate the
legalization or practice of prostitution, we believe that there
is serious doubt as to whether that provisionwould survive
judicial scrutiny I challenged in court. In particular, we note that
the prohibition on grant recipients using their own private, segregated
funds to promote the legalization of prostitution, as opposed to the
practice of prostitution, would be particularly vulnerable to legal
challenge.

* * * * * * *

Thank you for the opportunity to comment on this matter. If
we may be of additional assistance, we trust that you will not
hesitate to call upon us. The Office of Management and Budget
has advised that there is no objection from the standpoint of
the Administration's program to the presentation of this
report.
Sincerely,
William E. Moschella,
Assistant Attorney General.

Changes in Existing Law Made by the Bill, as Reported

The bill was referred to this committee for consideration
of such provisions of the bill and amendment as fall within the
jurisdiction of this committee pursuant to clause 1(k) of Rule
X of the Rules of the House of Representatives. The changes
made to existing law by the amendment reported by the Committee
on International Relations are shown in the report filed by
that committee (Rept. 108-264, Part 1).

Markup Transcript

BUSINESS MEETING, WEDNESDAY, SEPTEMBER 24, 2003, HOUSE OF
REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, WASHINGTON, DC

Pursuant to notice, I now call up the bill H.R. 2620, the
Trafficking Victims Protection Reauthorization Act, for
purposes of markup and moves it favorable recommendation to the
House. Without objection, the bill will be considered as read
and open for amendment at any point, and the text as reported
by the Committee on International Relations, which the members
have before them, will be considered as read, considered as the
original text for purposes of amendment, open for amendment at
any point.
[H.R. 2620 follows:]

Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes to explain the bill.
The State Department has estimated that 50,000 women and
children are trafficked annually to the U.S. for the sex trade
the slave-like labor. Others estimate that 100,000 aliens are
smuggled into the U.S. annually from China alone and are forced
into slave-like labor to pay off their smuggling debt of tens
of thousands of dollars.
The bill combats the trafficking of persons around the
world through prosecution of traffickers and protection and
assistance of victims of trafficking. Today's legislation
authorizes appropriations under the act for the next 2 fiscal
years and makes a number of modifications to the act. I have a
more extensive opening statement, which I will put into the
record at this point in time and yield back the balance of my
time.
[The statement of Chairman Sensenbrenner follows:]

Statement of F. James Sensenbrenner, Jr.

The State Department has estimated that 50,000 women and children
are trafficked annually to the U.S. for the sex trade and slave-like
labor. Others estimate that 100,000 aliens are smuggled into the U.S.
annually from China alone and are forced into ``slave-like'' labor to
pay off their smuggling debt of tens of thousands of dollars.
The Trafficking Victims Protections Act of 2000 combats trafficking
of persons around the world through prosecution of traffickers and
through protection and assistance to victims of trafficking. Today's
legislation, H.R. 2620, authorizes appropriations for programs under
the Act for fiscal years 2004 and 2005, and makes a number of
modifications to the Act.
Among the provisions of the Trafficking Victims Protection Act that
are within the jurisdiction of the Committee on the Judiciary are
immigration law sections that:
Make available ``T'' non-immigrant visas to victims
of a severe form of trafficking who have complied with any
reasonable request for assistance in the investigations or
prosecution of acts of trafficking (unless they are younger
than 15) and who would suffer extreme hardship upon removal;
visas are also available to the victims' spouses, children, and
parents if the victims are under 21, and to the spouse and
children if the victims are over 21, and
Grant such aliens permanent residence after three
years if they have been of good moral character and if they
have complied with any reasonable request for assistance in the
investigation or prosecution of acts of trafficking or if they
would suffer extreme hardship upon removal from the U.S.
H.R. 2620, as passed by the International Relations committee,
modifies these provisions by providing that:
Aliens can qualify to T visas by cooperating with
state and local law enforcement agencies as well as federal
agencies,
The age of aliens who can receive T visas without
cooperating with law enforcement would be raised from under 15
to under 18,
If an alien receiving a T visa is under 21,
unmarried siblings under 21 would be added to the list of
family members who can receive visas,
The ``public charge'' ground of inadmissibility
would not apply to aliens seeking T visas, and
In order to prevent traffickers from obtaining
information contain in applications for T visas filed by
trafficking victims, the dissemination of information that
relates to an applicant would be extremely limited.
H.R. 2602 also makes a number of other modifications to the
provisions in the TVPA within the jurisdiction of the Committee, such
as:
Adding three new predicate crimes to the RICO
statute, relating to forced labor, slavery, and the sex
trafficking of children; RICO crimes are punishable by fines,
forfeiture, and imprisonment for not more than 20 years or life
if a predicate offense carries such a penalty and civil RICO
allows the injured person to recover treble damages, costs and
attorneys' fees, and
Authorizing International Law Enforcement Academies,
which are targeted at mid-level officials in the police and
criminal justice services of countries throughout the world, to
train prosecutors and law enforcement regarding trafficking.
I urge my colleagues to support this legislation.

Chairman Sensenbrenner. I would point out that the
sequential expires on this bill on Monday, and its is unlikely
that we will get an extension. So we are going to have to
figure out how to get this bill out before the next vote;
otherwise, we'll lose jurisdiction.
The gentleman from Michigan?
Mr. Conyers. I have a record--a statement to put in the
record, not a record to put in the statement.
Chairman Sensenbrenner. Without objection, whatever the
gentleman wants to put in the record will be done.
[The statement of Mr. Conyers follows:]

Statement of Congressman John Conyers, Jr.

Of all the human rights violations currently occurring in our
world, the trafficking of human beings, predominantly women and
children, has to be one of the most horrific practices of our time. At
its core, the international trade in women and children is about
abduction, coercion, violence and exploitation in the most
reprehensible ways.
In the 106th Congress, we passed the Trafficking Victims Protection
Act of 2000 in a modest effort to eradicate this form of modern day
slavery. At that time, thousands of men and women were being forced to
labor in our fields without pay, to work endless hours in sweatshops,
and to serve in sexual slavery in cities across this country. And U.S.
prosecution of traffickers faltered because attorneys in our Department
of Justice did not have the right tools to pursue the new forms of
trafficking.
Today the picture is visibly brighter. Because of the enactment of
the Trafficking Victims Protection Act of 2000, the Attorney General is
prosecuting cases from American Samoa to Massachusetts. And victims are
coming forward because of the federal benefits we are offering to them,
treating them like the refugees that they are.
But we need to do more. The legislation before us today, the
Trafficking Victims Reauthorization Act of 2003, takes us one step
further in our commitment to ending modern day slavery.
This bill authorizes new strategies for prevention, including using
trafficking victims to identify traffickers at the borders and
deterring sex tourism, which is part of the fuel of sex slavery around
the world.
It increases protection by making measured expansions of the visa
category for trafficking victims. And it enhances prosecution of
traffickers by, ensuring that trafficking is treated like the organized
crime that it is.
This is good bi-partisan bill. I urge my colleagues to support it.

Chairman Sensenbrenner. And without objection, all members
may put opening statements into the record at this point.
Are there amendments?
Mr. Scott. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I just want to ask a question.
Looking through the bill, it looks like there are a lot of
grant programs that are extended--that are extended. Are there
any changes in criminal law in the bill? Criminal penalties?
Chairman Sensenbrenner. If the gentleman will yield, the
answer is yes, there are some changes in criminal law.
Mr. Scott. And could you----
Chairman Sensenbrenner. If the gentleman will yield, there
are RICO provisions that are added to this bill, and they add
them as predicate offenses as well for sex trafficking.
Mr. Scott. Thank you, Mr. Chairman. I yield back.
Chairman Sensenbrenner. Other amendments?
Mr. Hostettler. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Hostettler.
Mr. Hostettler. Mr. Chairman, I have an amendment at the
desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 2620, offered by Mr.
Hostettler. Page 9, strike lines 9 through 11 and insert the
following----
Mr. Hostettler. Mr. Chairman, I ask unanimous consent that
it be considered as read.
[The amendment of Mr. Hostettler follows:]

Chairman Sensenbrenner. Without objection, so ordered. The
gentleman's recognized for 5 minutes.
Mr. Hostettler. I thank the chairman.
Mr. Chairman, my amendment makes a simple but important
clarification to the Trafficking Victims Protection Act of
2000. Under the act, temporary visas and eventual permanent
residency are available to aliens who are found to be victims
of trafficking. A T visa is available to a victim of a severe
form of trafficking in persons who, if 15 or older, has
complied with any reasonable request for assistance in the
investigation or prosecution of acts of trafficking and who
would suffer extreme hardship involving unusual or severe harm
upon removal.
A severe form of trafficking means, when not in thecontext
of sex trafficking, ``the recruitment, harboring, transportation,
provision, or obtaining of a person for labor or services through the
use of force, fraud, or coercion for the purpose of subjection of
involuntary servitude, peonage, debt bondage, or slavery.''
But what is the difference between aliens who are smuggled
into the U.S. and aliens who are trafficked into the U.S.? What
is to prevent an alien who sought out a smuggler and promised
to pay the smuggler tens of thousands of dollars after being
smuggled into the United States from then turning around and
claiming he deserves a victim of trafficking visa?
What if he claimed that he was subjected to debt bondage or
peonage because he was put to work by the smuggler? After all,
most illegal aliens from countries such as China agree to these
very sort of deals when their smugglers--with their smugglers
in order to obtain passage. This perverse result is all too
possible under the trafficking Act as it now exists.
The T visa regulations demonstrate the trouble the INS had
in differentiating smuggled and trafficked aliens. The
commentary on the regulation states that, ``Unlike alien
smuggling, severe forms of trafficking in persons must involve
both a particular means, such as the use of force, fraud, or
coercion, and a particular ends, such as involuntary servitude
or a commercial sex act.''
Well, this is not much help because much alien smuggling
involves these very things. The commentary then states that,
``Individuals who are voluntarily smuggled into the U.S. in
order to be used for labor or services may become victims of a
severe form of trafficking in persons if, for example, after
arrival the smuggler uses threats of serious harm or physical
restraint to force the individual into involuntary servitude,
peonage, debt bondage, or slavery. Federal law prohibits forced
labor, regardless of the victim's initial consent to work.''
This is exactly what I was worried about, aliens who sought
out their smugglers and now claim to be victims of trafficking.
My amendment simply clarifies that adult aliens who are
voluntarily smuggled into the U.S. are not eligible for
trafficking T visas. Those with unclean hands should not be
rewarded for their deeds. The real victims of trafficking,
aliens who are brought here against their will or children--
they are children who are sold into bondage by their parents
will continue to be eligible for visas and permanent residence
under my amendment. Without this crucial amendment, abuse of
the T visa will only grow as legions of immigration attorneys
become familiar with its benefits for their smuggled clients.
Smuggling will become an even more attractive option than it
already is, as prospective illegal aliens learn that they can
receive visas and amnesty oncebeing smuggled into the U.S. and
forced into work.
I urge my colleagues to support this amendment, Mr.
Chairman, and I yield back the balance of my time.
Ms. Jackson Lee. Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. Mr. Chairman, I had amendments at the desk
that I thought were extremely important regarding age-out
provisions, but I'm prepared to work----
Chairman Sensenbrenner. The question is on----
Ms. Jackson Lee [continuing]. With my colleague----
Chairman Sensenbrenner. The current pending amendment is
the Hostettler amendment.
Mr. Scott. Mr. Chairman.
Ms. Jackson Lee. Then I'm speaking to that, then, Mr.
Chairman.
Chairman Sensenbrenner. The gentlewoman's recognized for 5
minutes.
Ms. Jackson Lee. Mr. Chairman, these visas are for victims
of abuse, victims of violent acts. I believe when you start
trying to decipher how someone came into the country who is
being abused, who may be in the process of seeking
legalization, you make this extremely difficult. The victims
are not the culprits. They're not the perpetrators of violence.
And they may be in the country and be utilized in a trafficking
aspect. They may come into that situation. They may come into
prostitution. They may come into a situation where they cannot
get out of in terms of slave employment, if you will.
And so I would ask that we not have a limitation like this
with respect to this visa because we are trying to help people,
and the help then is limited by the restriction of this
particular amendment.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The question is on--the gentleman
from Virginia.
Mr. Scott. Strike the last word.
Chairman Sensenbrenner. The gentleman's recognized.
Mr. Scott. Mr. Chairman, as I understand the amendment,
people who come in and are forced into slavery after they get
here would lose their protection under the Act. I think that's
going in the wrong direction, and I would hope that we would
defeat the amendment.
Mr. Hyde. Would the gentleman yield?
Mr. Scott. I'll yield.
Mr. Hyde. I think a lot of these women are fraudulently
lured into the country. You can't say they are forcibly moved
into the country. But when they're promised a job, when they're
promised all sorts of benefits, when they come over they find
themselves working in a sweatshop or in the business of
prostitution, they have been deceived and they ought to have
the benefit of the--of the law and not be excluded because they
were induced and seduced to come in through fraud. I think that
is just as heinous as forcibly kidnapping them. So I--and,
again, I don't think you're talking about a substantial number
of people, but I think in all fairness they are truly victims
and ought to be protected. So I respectfully will vote no on
the amendment.
Mr. Scott. Reclaiming my time, those are exactly the kinds
of people that would lose protection under this amendment, and
I don't think we ought to victimize the victims as this
amendment might do.
Mr. Cannon. Would the gentleman yield?
Mr. Scott. I'll yield.
Mr. Cannon. Let me just add--associate myself with the
comments of the gentleman from Illinois and add that in his
speech to the UN, the President focused directly on this issue.
I don't know how we can possibly expect other nations to work
with us and follow suit and track down this pernicious, ancient
evil if we ourselves gut our enforcement processes here and
refuse protection to those people who are defrauded into coming
to America.
Thank you. I yield back.
Mr. Scott. I yield back.
Chairman Sensenbrenner. The gentleman yields back.
Thequestion is on the Hostettler amendment.
Mr. Hostettler. Mr. Chairman.
Chairman Sensenbrenner. The gentleman has already been
recognized.
Mr. Hostettler. A unanimous consent request.
Chairman Sensenbrenner. State your request.
Mr. Hostettler. Mr. Chairman, I, unanimous consent, ask to
revise my amendment, to amend the amendment to state in line 6,
``(V) did not voluntarily, unless found to be a victim of sex
trafficking, come to the United States.'' And then on page 2,
line 11, ``sibling, or parent did not voluntarily''--once again
insert it--``unless found to be a victim of sex trafficking.''
Mr. Watt. Reserving the right to object.
Ms. Waters. Mr. Chairman.
Mr. Watt. Reserving the right to object.
Chairman Sensenbrenner. The gentleman from North Carolina
reserves the right to object.
Mr. Watt. I may not object, but I would like to get a
clarification on who would make this finding. Unless they are
found to be by whom?
Mr. Hostettler. The immigration authorities, immigration
judge.
Ms. Waters. Mr. Chairman.
Chairman Sensenbrenner. Is there objection?
Ms. Waters. Objection.
Chairman Sensenbrenner. Objection is heard. The question is
on the Hostettler amendment, not as modified. Those in favor
will say aye? Opposed, no?
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
Are there further amendments? If not, a reporting quorum--
Ms. Jackson Lee. I have an amendment at the desk, Mr.
Chairman.
Chairman Sensenbrenner. The clerk will report the
amendment.
Ms. Jackson Lee. Amendment 140.
The Clerk. Amendment to the Committee Print to H.R. 2620,
offered by Ms. Jackson Lee of Texas. Page 9, strike lines 15
through 18 and insert the following: (2) Admission of
Nonimmigrants. Section 214(n) of the Immigration and
Nationality Act----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment of Ms. Jackson Lee follows:]

Chairman Sensenbrenner. And the gentlewoman's recognized
for 5 minutes.
Ms. Jackson Lee. As I said, Mr. Chairman, I have amendments
140, 141, and 142 that are dealing with issues of age-out. I
would like to be able to--I see the chairman of the
International Relations Committee here. I would like to be able
to work with Mr. Hyde on this.
Mr. Hyde, this has to do with a parent having a 20-year-old
or a 19-year-old getting classification and then that 20-year-
old not being able to come under that visa because they might
age out. I think that is something that we need to consider,
and I'd appreciate if we'd have the opportunity to work on
this, possibly before we went to the floor of the House.
With that, I'll withdraw the amendment.
[Statements of Congresswoman Sheila Jackson Lee follows:]

Statement of Congresswoman Sheila Jackson Lee on Child Age-out
Protection Amendment No. 140

Under current law, a trafficking victim who has T visa status may
be able to accord derivative T visa status to a child. Sometimes,
however, the children of trafficking victims age-out during the
approval process. For instance, consider the case of a mother who files
a T visa application while her daughter is 20 years old. Subsequently,
the mother's application is approved and her daughter now applies for a
derivative T visa as the child of a trafficking victim. While the
daughter's application is being processed, she turns 21 and her
eligibility expires. She ages out of the child category. Under current
law, the daughter is then ineligible for derivative T visa status.
This can be a disaster in the case of a derivative T visa. The
child waiting for derivative status is only eligible for the T visa in
the first place if DHS has determined that granting the visa is
necessary to avoid extreme hardship. My amendment would avoid extreme
hardship in such cases by providing age-out protection. If the daughter
was under the age of 21 when the mother applied for T visa status for
herself, the daughter will continue to satisfy this age requirement
even if she reaches the age of 21 before she can be granted derivative
T visa status.
I urge you to vote for this amendment to avoid such unnecessary and
unwarranted consequences.
______

Statement of Congresswoman Sheila Jackson Lee on Parent Status
Protection Amendment No. 141

Under current law, a trafficking victim with T visa status who is
under the age of 21 may accord derivative T visa status to a parent.
Sometimes, however, the trafficking victim ages-out during the approval
process. For instance, consider the case of a daughter who files a T
visa application while she is 20 years old. When her application is
approved, she applies for derivative T visa status for her mother.
While the application is being processed, the daughter turns 21 and her
eligibility to accord derivative status to her mother expires. Under
current law, the mother is then ineligible for derivative T visa
status.
This can be a disaster in the case of a derivative T visa. The
mother waiting for derivative status is only eligible for derivative T
visa status in the first place if DHS has determined that granting the
derivative visa is necessary to avoid extreme hardship. My amendment
would avoid extreme hardship in such cases by providing age-out
protection. If the daughter was under the age of 21 when the applied
for T visa status for herself, the daughter will continue to satisfy
this age requirement even if she reaches the age of 21 before her
mother can be granted derivative T visa status.
I urge you to vote for this amendment to avoid such unnecessary and
unwarranted hardships to the parents of trafficking victims.
______

Statement of Congresswoman Sheila Jackson Lee on a T-Visa Renewal
Amendment

Trafficking victims may be able to obtain temporary status in this
country if the Department of Homeland Security (DHS) determines that
they meet the requirements for a nonimmigrant T visa under section
101(a)(15)(T) of the Immigration and Nationality Act. These
requirements include being a victim of a severe form of trafficking,
being willing to comply with any reasonable request for assistance in
the investigation or prosecution of acts of trafficking, and a finding
by DHS that the alien would suffer extreme hardship involving unusual
and severe harm upon removal from the United States. When such a visa
is issued to a trafficking victim, his or her immediate family members
(spouses, children, or parents) may be eligible to receive a derivative
T visa if DHS considers this necessary to avoid extreme hardship.
When a trafficking victim has been present in the United States for
a continuous period of at least 3 years on the basis of a T visa, DHS
has discretionary authority to adjust the status of the trafficking
victim and his or her immediate family members who have T visas too.
DHS can grant them lawful permanent resident status if the trafficking
victim continues to satisfy the requirements for the initial issuance
of the T visa and has been a person of good moral character throughout
his or her period of residence in the United States. Among other
things, this means that DHS would have to find again that the
trafficking victim would suffer extreme hardship involving unusual and
severe harm upon removal from the United States.
The Immigration and Nationality Act does not limit the duration of
T visas. The former Immigration and Naturalization Service (INS),
however, promulgated a regulation that limits T visa status to a 3-year
period and specifies that the status cannot be renewed. Consequently,
when a trafficking victim with T visa status has resided in the United
States for 3 years, he or she must file for permanent residency or
return to his or her country of origin.
I question whether the INS had the authority to impose such a limit
on the duration of T visa status. In any case, I amconcerned about the
fact that trafficking victims may have provided information about
trafficking operations as a condition for maintaining their T via
status. In such cases, the possibility of retribution could make it too
dangerous for them to return until the traffickers are incarcerated,
yet they may not want to remain in the United States permanently. Many
of them were taken by force from their families and would like to go
home when it is safe for them to do so.
My amendment would avoid this problem by permitting DHS to grant a
3-year extension on T via status for trafficking victims and family
members. This authority would be limited to the cases of trafficking
victims and their family members who can satisfy the same hardship
requirements that they had to satisfy to obtain their initial grants of
T via status, which almost certainly would be the case where serious
retribution is feared.
I urge you to vote for my amendment. Thank you.

Chairman Sensenbrenner. The amendment is withdrawn.
Are there further amendments? If not, a reporting quorum is
present. The question occurs on the motion to report the bill
H.R. 2620 favorably. All those in favor will say aye, those
opposed, no.
The ayes appear to have it. The ayes have it, and the
motion to report favorably is agreed to.
Without objection, the chairman is authorized to move to go
to conference pursuant to House Rules. Without objection, the
staff is directed to make any technical and conforming changes,
and all members may be given 2 days as provided by the House
Rules in which to submit additional, dissenting, supplemental,
or minority views.