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PERSONS

Subpart A [Reserved]

Subpart B-Victims of Severe Forms of

Trafficking in Persons

Sec. 1100.25 Definitions. 1100.27 Purpose and scope. 1100.29 The roles and responsibilities of fed

eral law enforcement, immigration, and Department of State officials under the Trafficking Victims Protection Act

(TVPA). 1100.31 Procedures for protecting and pro

viding services to victims of severe forms of trafficking in persons in federal cus

tody. 1100.33 Access to information and trans

lation services for victims of severe

forms of trafficking in persons. 1100.35 Authority to permit continued pres

ence in the United States for victims of

severe forms of trafficking in persons. 1100.37 Requirements to train appropriate

personnel in identifying and protecting victims of severe forms of trafficking in

persons. AUTHORITY: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1104, 1252; 22 U.S.C. 7101, 7105; 42 U.S.C. 10606 and 10607; and section 107(c) of Public Law 106-386 (114 Stat. 1464, 1477).

SOURCE: 66 FR 38518, July 24, 2001, unless otherwise noted.

harm to or physical restraint against any person; or any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or the abuse or threatened abuse of law or the legal process (22 U.S.C. 7102).

Commercial ser act means any sex act on account of which anything of value is given to or received by any person (22 U.S.C. 7102).

Debt bondage means the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined (22 U.S.C. 7102).

Family members of victims of severe forms of trafficking in persons means spouses, children, parents, or siblings whom traffickers have targeted or are likely to target and for whom protections from harm may reasonably be provided. At the discretion of the responsible official, this classification may be extended to include other family members. This definition is only applicable to the protections from harm referred to in this subpart.

Federal custody means that statutory detention and custodial authority exercised by personnel of federal agencies, bureaus, boards, divisions, programs, and offices.

Federal victims' rights legislation means the following statutes, as amended: the Victim and Witness Protection Act of 1982 (VWPA), Public Law 97–291, 96 Stat. 1248; the Victims of Crime Act of 1984, Public Law 98-473, 98 Stat. 2170; the Victims Rights and Restitution Act of 1990, Public Law 101-647, 104 Stat. 4820; the Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, 108 Stat. 1796; the Antiterrorism and Effective Death Penalty Act of 1996, Public Law 104-132, 110 Stat. 1214; the Victim Rights Clarification Act of 1997, Public Law 105-6, 111 Stat. 12; and the Victims of Trafficking and Violence Protection Act of

Subpart A [Reserved]

Subpart B-Victims of Severe

Forms of Trafficking in Persons $ 1100.25 Definitions.

In this subpart, the following definitions apply:

Admission and Admitted mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer (8 U.S.C. 1101).

Alien means any person not a citizen or national of the United States (8 U.S.C. 1101).

Attorney General Guidelines means the Attorney General Guidelines for Victim and Witness Assistance 2000, which contain a policy guidance on how to treat crime victims and witnesses; these guidelines are available through the Internet on the Department of Justice's website.

2000 (VTVPA), Public Law 106–386, 114 Stat. 1464.

INA means the Immigration and Nationality Act, 8 U.S.C. 1101 et seq.

Involuntary servitude includes a condition of servitude induced by means of any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or the abuse or threatened abuse of the legal process (22 U.S.C. 7102).

Responsible official refers to the agency official designated to provide the services described in 42 U.S.C. 10607(a).

Section 107(c) means section 107(c) of TVPA, Division A of Public Law 106– 386.

Services to victims refer to those seryices to be provided pursuant to 42 U.S.C. 10607(c), unless otherwise specified in the TVPA or this subpart.

Severe forms of trafficking in persons means sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act 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 (22 U.S.C. 7102).

Sex trafficking means the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act (22 U.S.C. 7102).

TVPA means the Trafficking Victims Protection Act of 2000, Public Law 106– 386, Division A, October 28, 2000, 114 Stat. 1464, as amended, 22 U.S.C. 7105,

$ 1100.27 Purpose and scope.

(a) Under section 107(c) of the TVPA, both the Department of Justice (DOJ) and the Department of State (DOS) have been directed to promulgate regulations to implement the following:

(1) Procedures for appropriate federal employees to ensure, to the extent practicable, that victims of severe forms of trafficking in persons are housed in a manner appropriate to their status as crime victims, afforded proper medical care and other assistance, and protected while in federal custody, in accordance with their status as victims of severe forms of trafficking in persons;

(2) Procedures to provide victims of severe forms of trafficking in persons with access to information about their rights and with translation services;

(3) Procedures for federal law enforcement officials to request that certain victims of severe forms of trafficking in persons, who are aliens and are also potential witnesses, be permitted to remain in the United States to effectuate the prosecution of those responsible, and procedures to protect their safety, including taking measures to protect victims of severe forms of trafficking in persons and their family members from intimidation, threats of reprisals, and reprisals from traffickers and their associates (these procedures should be appropriate to their status as victims of severe forms of trafficking in persons); and

(4) Training of appropriate DOJ and DOS personnel in identifying victims of severe forms of trafficking in persons, in understanding the particular needs common to victims of severe forms of trafficking in persons, and in providing for the protection of such victims.

(b) The regulations in this subpart apply to all federal law enforcement personnel, immigration officials and DOS officials, insofar as their duties involve investigating or prosecuting traffickers in persons, or may involve identifying, encountering or detaining victims of severe forms of trafficking in persons.

(c) The rights and protections made available to victims of severe forms of trafficking in persons under section

[blocks in formation]

107(c) supplement those rights and pro- trafficking in persons, appropriate DOS tections provided to victims and wit- personnel, upon encountering victims nesses in federal victims' rights legis- of severe forms of trafficking in perlation as defined in this subpart. The sons in foreign countries, should conintent of this subpart is to ensure that sider referrals to local law enforcement the protections available under the or service providers in the host counprovisions of federal victims' rights try, but only if the local host country legislation as well as the TVPA are conditions support such actions. fully provided to victims of severe (c) Federal law enforcement officials. forms of trafficking in persons, in Federal law enforcement officials who, keeping with their status as victims of

during the performance of their duties, severe forms of trafficking in persons. encounter a person whom they believe This subpart will ensure that these vic

may be a victim of a severe form of tims are identified as early as possible

trafficking in persons as defined by in the investigation and prosecution

this subpart, are responsible for bringprocess, so that services and protec- ing such an individual to the attention tions available to them under the laws

of those federal law enforcement offiof the United States are provided.

cials primarily responsible for enforc(d) The regulations under this sub

ing trafficking laws, specifically INS or part set forth the general procedures to

FBI. In addition, DOS's Diplomatic Seensure these rights are protected in

curity Service has investigative aucases involving victims of severe forms

thority in visa and passport fraud cases of trafficking in persons. All agencies,

that may involve trafficking in perbureaus, boards, divisions, programs,

sons. Federal law enforcement officials and offices in the DOJ and the DOS

also include federal law enforcement with specific responsibilities under this

personnel working cooperatively with subpart shall adopt such regulations

law enforcement officials who have priand/or operating procedures as may be

mary investigative jurisdiction in such necessary to ensure compliance with

trafficking cases. Each federal agency section 107(c) and the requirements of

having law enforcement responsibilthis subpart.

ities should ensure that its officers are $ 1100.29 The roles and responsibilities

trained in identifying victims of severe of federal law enforcement, immi.

forms of trafficking in persons, and are gration, and Department of State familiar with the rights, services, and officials under the Trafficking Vic- protections such victims are to be actims Protection Act (TVPA).

corded under the TVPA and 42 U.S.C. (a) Department of Justice officials. The 10606 and 10607. various agencies, bureaus, boards, divisions, programs, and offices of the DOJ

$ 1100.31 Procedures for protecting have most of the responsibilities as

and providing services to victims of

severe forms of trafficking in persigned by section 107(c). The goals of section 107(c) are to identify victims of

sons in federal custody. severe forms of trafficking in persons (a) While in federal custody, all vicas early as possible in the investigation tims of severe forms of trafficking in and prosecution process, to ensure ef- persons must be provided, to the extent forts are made to see that such victims practicable, the protections and servare accorded the rights described in 42 ices outlined in this section in accordU.S.C. 10606, and to provide the protec- ance with their status as victims of setions and services required under 42

vere forms of trafficking in persons. U.S.C. 10607 and under the TVPA.

Under 42 U.S.C. 10607(a), each agency (b) Department of State officials. De- must designate officials who are repartment of State missions throughout sponsible for identifying victims of the world are often the initial contact crime and providing services to them. for aliens in foreign countries who wish The designations appear in the Attorney to come to the United States. Appro- General Guidelines. This responsibility priate DOS personnel should be trained also extends to those who are responin identifying victims of severe forms sible for victims of severe forms of of trafficking in persons. Furthermore, trafficking in persons while they are in considering the international nature of federal custody.

sons.

(b) To the extent practicable and al- and protective orders, as set out in 18 lowed by law, alternatives to formal U.S.C. 1514, if practicable. If the vicdetention of victims of severe forms of tim's safety is at risk or if there is dantrafficking in persons should be consid- ger of the victim's recapture by the ered in every case. However, if deten- trafficker, the responsible official tion is required, victims of severe should take the following steps under forms of trafficking in persons in fed- the TVPA: eral custody, to the extent practicable, (1) Use available practical and legal shall not be detained in facilities inap

measures to protect the trafficked vicpropriate to their status as crime vic

tim and family members from intimitims. The responsible official shall

dation, harm, and threats of harm; and make all efforts, where appropriate and

(2) Ensure that the names and identipracticable, to house those victims separately from those areas in which

fying information pertaining to trafcriminals are detained. The responsible

ficked victims and family members are official must also provide protections

not disclosed to the public. and security to those victims as re

$ 1100.33 Access to information and quired by federal standards, policies,

translation services for victims of and procedures. Information on the fed

severe forms of trafficking in pereral prohibitions against intimidation and harassment, and the remedies available for such actions should rou

(a) All federal investigative, prosecutinely be made available to victims.

torial, and correctional agencies en(c) Victims of severe forms of traf- gaged in the detection, investigation, ficking in persons in federal custody

or prosecution of crime shall use their shall receive necessary medical care

best efforts to see that victims of seand other assistance. This care should

vere forms of trafficking in persons are include free optional testing for HIV accorded all rights under federal vicand other sexually transmitted dis- tims' rights legislation. In cases ineases in cases involving sexual assault volving severe forms of trafficking in or trafficking into the sex industry, as persons, federal officials should provide well as a counseling session by a medi- victims within the United States, as cally-trained professional on the accu- defined by this subpart, information racy of such tests and the risk of trans- about their rights and applicable servmission of sexually transmitted dis- ices, including: eases to the victim. Other forms of (1) Pro bono and low-cost legal servmental health counseling or social

ices, including immigration services; services also may be appropriate to ad

(2) Federal and state benefits and dress the trauma associated with traf

services (victims who are minors and ficking in persons.

adult victims who are certified by the (d) As mandated by 42 U.S.C. 10607,

United States Department of Health federal officials are responsible for ar

and Human Services (HHS) are eligible ranging for victims to receive reason

for assistance that is administered or able protection from a suspected of

funded by federal agencies to the same fender and persons acting in concert

extent as refugees; others may be eligiwith or at the behest of the suspected

ble for certain, more limited, benefits); offender. Federal law enforcement

(3) Victim service organizations, inagencies also should protect victims of a severe form of trafficking in persons

cluding domestic violence and rape crifrom harm and intimidation pursuant

sis centers; to section 6 of the Victim and Witness

(4) Protections available, especially Protection Act of 1982 and 18 U.S.C.

against threats and intimidation, and 1512 note. It may also be appropriate to

the remedies available as appropriate discuss with the victims the available for the particular individual's cirremedies described in 18 U.S.C. 1512 and

cumstances; 1513. Federal officials also should em- (5) Rights of individual privacy and ploy civil procedures for protecting confidentiality issues; victims and witnesses, including appli- (6) Victim compensation and assistcation for temporary restraining orders ance programs;

(7) Immigration benefits or programs that may be relevant to victims of severe forms of trafficking in persons, including those available under the VTVPA;

(8) The right to restitution;

(9) The right to notification of case status; and

(10) The availability of medical services.

(b) The federal agencies as defined in paragraph (a) of this section must ensure reasonable access to translation services and/or oral interpreter services in the event the victim is not able to communicate in English.

ex

$ 1100.35 Authority to permit contin

ued presence in the United States for victims of severe forms of traf

ficking in persons. (a) Federal law enforcement officials who encounter alien victims of severe forms of trafficking in persons who are potential witnesses to that trafficking may request that the Immigration and Naturalization Service (INS) grant the continued presence of such aliens in the United States. All law enforcement requests for continued presence must be submitted to the INS, Headquarters Office of Field Operations, in accordance with INS procedures. Each federal law enforcement agency will designate a headquarters office to administer submissions and coordinate with the INS on all requests for continued presence. The designated headquarters office will be responsible for meeting all reporting requirements contained in INS procedures for the processing and administering of the requests for continued presence in the United States of eligible aliens.

(b) Upon receiving a request, the INS will determine the victim's immigration status. When applicable and appropriate, the INS may then use a variety of statutory and administrative mechanisms to ensure the alien's continued presence in the United States. The specific mechanism used will depend on the alien's current status under the immigration laws and other relevant facts. These mechanisms may include parole, voluntary departure, stay of final order, section 107(c)(3)-based deferred action, or any other authorized

form of continued presence, including applicable nonimmigrant visas.

(1) The alien's continued presence in the United States under this subpart does not convey any immigration status or benefit apart from that already encompassed by the particular form of authorized continued presence granted. In most circumstances, victims granted continued presence will be eligible for temporary employment authorization.

(2) The continued presence granted through any of the mechanisms described in this paragraph (b) will contain the terms normally associated with the particular type of authorized continued presence granted, including, but not limited to, duration of benefit, terms and procedures for receiving an extension, travel limitations, and employment authorization unless pressly waived in an individual approval. Aliens granted deferred action based upon section 107(c)(3) are considered to be present in the United States pursuant to a period of stay authorized by the Attorney General for purposes of INA sections 212(a)(9)(B)(I) and (C).

(c)(1) In cases where it is determined that the granting to an alien of continued presence in the United States poses a threat to national security or to the safety and welfare of the public, the INS may require the requesting agency to meet special conditions or requirements prior to approval. The INS will promptly convey any such condition or requirement to the requesting agency in writing. Upon agreement by the requesting agency to comply with the conditions and accept the costs associated with the implementation of those conditions, the INS will grant the continued presence of the alien in the United States.

(2) Although the INS and the requesting law enforcement agency will make every effort to reach a satisfactory agreement for the granting of continued presence, the INS may deny a request for continued presence in the following instances:

(i) Failure, on the part of the requesting agency, to provide necessary documentation or to adhere to established INS procedures;

(ii) Refusal to agree or comply with conditions or requirements instituted

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