Commission on Security and Cooperation in Europe

Testimony :: Martina Vandenburg, Esq.
Pro Bono Counsel - The Freedom Network USA

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Helsinki Commission Hearing

Martina E. Vandenberg

Pro Bono Counsel, The Freedom Network USA



Chairman Smith, Chairman Cardin, and Helsinki Commission Members,



Thank you for inviting me to testify before you today. It is an honor to have this opportunity to speak to you about the problem of human trafficking and transnational organized crime. I would particularly like to thank Congressman Smith for his dedication to the fight against all forms of human trafficking, including trafficking for forced labor and involuntary servitude.



Over the years, under Chairman Smith’s leadership, the Helsinki Commission has steadfastly fought to ensure that we never lose sight of the victims of human trafficking. It is that perspective that I hope to bring to your attention this morning.



I serve as pro bono counsel to the Freedom Network (USA), a coalition of thirty-one nongovernmental organizations and individuals providing services to ? and advocating for the rights of ? trafficking survivors in the United States. The Freedom Network was founded in 2001, immediately following the enactment of the Trafficking Victims Protection Act of 2000 (TVPA).

Our members have served the majority of individuals certified by the Department of Health and

Human Services (HHS) as victims of a severe form of trafficking in persons. We use a rights-based framework in providing those services. The Freedom Network’s advocacy draws directly from the experiences of trafficking survivors we have worked with in the field.



Organized crime brings to mind stereotypical gangsters, heavily armed and laden with cash. Human trafficking certainly encompasses traditional organized crime. But more often, human trafficking is conducted by “disorganized crime:” small groups operating independently. The United Nations Convention Against Transnational Organized Crime defines an “organized criminal group” as a “structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences….” Using this definition, consider the following cases:



• Mondragon: In 2006, Oscar Mondragon pleaded guilty to conspiring with his two brothers to lure young women from Central America to the United States with promises of good jobs. When the women arrived, Mondragon and his co-conspirators held the women in forced labor in Houston-area bars and cantinas selling high-priced drinks to male customers.



• Carreto: In 2008, a diminutive grandmother pled guilty to sex trafficking for her role in a family-run gang based in Tenancingo, Mexico. According to the indictment, two of Ms. Carreto’s sons and an associate used “physical violence, sexual assault, threats of harm, deception, false promises and coercion” to force the women into prostitution in the

United States.



• Calimlim: Two physicians in Wisconsin were convicted in 2006 of trafficking a young woman and holding her in their home for nineteen years as a domestic servant. The physicians threatened the victim with deportation and imprisonment if she disobeyed their orders. After the criminal convictions, pro bono attorneys filed a civil Racketeer Influenced and Corrupt Organizations Act (RICO) action against the physicians and their three adult children.



• Askarkhodjaev: Askarkhodjaev: An Uzbek citizen, Abrorkhodja Askarkhodjaev, was sentenced to 12 years in prison in the first forced labor trafficking case charged as part of a criminal RICO conspiracy. Akarkhodjaev and his co-conspirators trafficked foreign laborers holding various visa statuses into the United States through three corporations for forced labor in hotels. According to the 90-page indictment, the traffickers charged their victims between $3,000 to $5,000 to obtain temporary employment visas known as H-2Bs. The victims and their families borrowed heavily to pay these fees.



As these examples illustrate, this is organized crime 2.0. It is global. It preys on the vulnerability of migrants seeking a better life in the United States. In many cases, it relies on labor recruiters and middlemen to bring victims into the United States legally. It can be violent, but is not necessarily so. Debt bondage and threats of deportation are often enough to immobilize victims. But there is one feature the traditional gangsters and the new organized criminals share: they are laden with cash.



In the words of Florrie Burke, a Freedom Network leader and one of the leading experts on human trafficking in the United States, “We are seeing more family-run operations and small-criminal networks. It is not the old definition of organized crime. But it is just as dangerous.”



With these cases in mind, I’d like to focus on three main areas:



1. The need for victim and witness protection;

2. The role of corruption in human trafficking; and

3. The role of restitution in the fight against human trafficking.



At the end of my remarks, I will suggest some recommendations and remedies that may help in our joint mission: the eradication of human trafficking.



Victim and Witness Protection



In the United States, and throughout the OSCE region, victims look to non-governmental organizations and civil society for support. Trafficked men, women, and children arrive on the Freedom Network members’ doorsteps in very different ways. Some escape from their traffickers and find the NGOs. Others are identified in raids by law enforcement and referred to service providers. Still others find help through Good Samaritans or faith-based communities. But no matter how they find these organizations, the victims have several things in common. First, they are highly traumatized. Second, they are utterly terrified. And third, they are concerned about family members, particularly children, back in their country of origin.



The Freedom Network has advocated forcefully over the past eight months for improvements in protections for victims of human trafficking. The key building block for protection in the United States is continued presence, a temporary form of immigration relief available only through federal law enforcement. Continued presence (CP) permits victims of trafficking to remain in the United States during a criminal investigation, without fear of deportation. CP also allows the victims to obtain a work permit and minimal benefits. The concept, embedded in the TVPA, is that victims able to stabilize their lives and their status will be able to cooperate in a criminal investigation.



But the numbers of victims receiving continued presence has plummeted. According to the State

Department Trafficking in Persons Report for June 2011, 299 victims received this very basic form of protection in 2009. In 2010, only 186 did.



The failure to protect victims of human trafficking – in part so that they may serve as witnesses in criminal cases against their traffickers – is one explanation for the abysmally low number of prosecutions in the United States and around the world.



How low is that number? In 2010, there were just 103 federal prosecutions of 181 defendants, with 141 convictions in the United States. In the entire world, there were just 6,017 prosecutions and 3,619 convictions. And in Europe, there were 2,803 prosecutions, resulting in just 1,850 convictions.



Victims who do not feel safe will not come forward to testify against their traffickers. Victims with family members remaining in the country of origin, particularly children, are often too terrified to cooperate. In some forced labor cases, relatives may work for the traffickers back in the home country, placing them at risk. In the Carreto case, the forced prostitution case highlighted above, the traffickers held the victims’ children hostage back in Mexico. According to Suzanne Tomatore, an attorney and co-chair of the Freedom Network, Russian traffickers operating in New York routinely terrified their victims by bragging about links to organized crime back in Russia. Family members at home would not be safe unless the victims continued working in strip clubs, surrendering all of their earnings.



These cases speak poignantly to the need to protect not just the victims in the United States, but also their family members abroad. Family members should be paroled into the United States. The categories for derivative status – that is family members of victims receiving T-derivative visas – should be expanded. And prosecutors in U.S. Attorneys offices need additional training. The AUSAs must not only understand human trafficking, they must also appreciate the risks that victims take in coming forward. In a recent case, an Assistant U.S. Attorney responded to a victim who had expressed fear of her trafficker. The AUSA told the victim, who spoke only limited English, that she should “Call 911.” Victims must be treated with sensitivity and care by law enforcement. Only then will we see victims willing to come forward to prosecute the perpetrators.



Corruption and Human Trafficking



Corruption is fundamental to traffickers’ success. I have testified before the Commission in the past about concrete cases of corruption I documented in post-conflict Bosnia & Herzegovina. There, as reported in the Human Rights Watch publication, Hopes Betrayed: Trafficking of Women and Girls to Post-Conflict Bosnia & Herzegovina for Forced Prostitution, corrupt police officers participated directly in trafficking. Some local police officers moonlighted as guards in brothels holding trafficked women and girls from the former Soviet Union. Traffickers provided pay-offs to local police in the form of cash and free sexual services in exchange for protection from raids.



At every step along the trafficking chain, there is an opportunity for bribery. In one case reported by La Strada, a well-respected anti-trafficking network in the OSCE region, a trafficker transported women by train across a border within the former Soviet Union. The trafficker held the passports for all of his victims, paying a customs agent a bribe for each woman traveling without a passport.



Does corruption matter in the United States? True, we do have the rule of law. Corruption is far less prevalent than in many other OSCE countries. But it is not non-existent. Take, for example, the case of an ICE agent from Florida. He pled guilty to soliciting kickbacks from a confidential informant working on a trafficking investigation. The ICE agent also demanded and received $12,000 from an individual in Ecuador smuggling migrants into the United States. In 2006, federal authorities indicted two NYPD officers for accepting bribes from traffickers operating a string of brothels on the Eastern seaboard. The traffickers, who forced women from Korea into prostitution, paid an undercover detective investigating these crimes more than $125,000 in cash.



Corruption and organized crime have a symbiotic relationship. But corruption is one of the most under-reported elements of human trafficking. And for victims, one of the most fundamental.



Whether the bribes occur here or abroad, corruption plays a fundamental role in the lives of trafficking victims in the United States. It is the backdrop. Many of the trafficking victims the Freedom Network members have encountered over the years come from countries where corruption is rampant. These victims bring an expectation of corruption. They believe that the police have been bribed. Many are convinced that the judge can be bought. Their traffickers have told them time and time again that once captured by U.S. law enforcement, they will be detained, prosecuted, and deported. For many of our clients, a “rescue” by Immigration and Customs Enforcement (ICE) agents is not a rescue. It is the culmination of all the horror stories told by traffickers. It is – in the victims’ eyes – an arrest. Victims from countries where justice is bought and sold see little hope for escape. And the traffickers stoke and exploit these fears. Corruption silences victims. It guarantees impunity.



Restitution and Human Trafficking



Under U.S. law, restitution for trafficking victims is mandatory. 18 U.S.C. § 1593. That is the law. The reality looks quite different. In the experience of the Freedom Network members, restitution orders are almost never collected. In some cases, the seized assets go to government coffers. In other cases, the U.S. Attorney’s Office does not follow up on the restitution order aggressively. Restitution orders must be enforced. In the first instance, it is the federal government’s responsibility to do so.



Why does restitution matter? First, seizing criminals’ assets deters crime. Trafficking is lucrative. Enforced restitution orders render it slightly less so. Second, trafficking victims are owed these funds. Restitution orders cover back wages and earnings stolen from them.

There is an enormous difference in the lives of trafficking survivors who receive their restitution orders and those who do not. Those who do can move out of economic crisis and secure a toe hold into normal life. Those who do not often continue to struggle, trapped in low wage jobs and exploited by unscrupulous employers.



Mandatory restitution offers the promise that victims can move on with their lives. But mandatory restitution is broken in the United States. Several years ago, Senator Durbin sent questions to the Department of Justice requesting data on the amount of restitution collected for victims, compared to the amount of restitution ordered. The Department of Justice responded that the government did not track these statistics. That is a mistake. Prosecutors should be trained: a case does not end with a criminal conviction. It ends with payment in full of the criminal restitution order. The Department of Justice should track the amounts of restitution collected and incorporate this into the performance evaluation metrics for federal prosecutors.



But that is not enough. The small number of victims who do receive restitution checks are horrified to learn that their back wages and restitution payments are taxable as federal income tax in the year received. That means that a victim who collects ten years’ worth of salary in one year will have to pay taxes in the highest income tax bracket. It is the traffickers – not the victims – who have committed tax fraud and evasion. Just as the Feds nailed Al Capone on tax evasion, traffickers should be forced to pay these taxes. Restitution orders must be increased to cover the taxes. Alternatively, trafficking victims should be given a tax waiver, much like that provided to Holocaust survivors who recover for crimes committed against them during World War II.



Restitution orders serve another purpose. With assets, trafficking victims can bring their family members to the United States. They can afford safe housing and transportation. And they can relocate for their own protection. There is no higher use for organized crime’s ill-gotten gains.



Recommendations:



1. Increase the use of continued presence to protect victims of human trafficking;

2. Parole relatives of trafficking victims into the United States to permit victims to cooperate with law enforcement fully – and without fear of retaliation against family members in the country of origin;

3. Increase the categories available for T-derivative visa status to permit trafficking victims to relocate close family members to the United States;

4. Ensure that trafficking victims are not held in immigration detention;

5. Improve the Department of Homeland Security’s efforts to screen individuals to identify trafficking victims;

6. Increase the attention in the State Department’s Trafficking in Persons Report to the role of corruption in human trafficking. This should include trafficking by state officials, with a particular focus on diplomats trafficking domestic workers for forced labor;

7. Train law enforcement authorities in the United States: 1) to anticipate trafficking victims’ unwillingness to cooperate after a “rescue”; and 2) to understand the role of corruption in countries of origin;

8. Include fraud in foreign labor contracting as a RICO predicate act;

9. Train prosecutors to engage in enforcement of restitution orders;

10. Reward prosecutors for cases where restitution orders are paid through positive performance review metrics;

11. Make restitution orders tax-free in the United States; and

12. Request a Government Accountability Office study on collection of criminal restitution orders in human trafficking cases.



These recommendations return our focus to where it should be: on the human rights of trafficking victims. Again, I thank you for this opportunity to speak with you. I would be happy to answer any questions.