Guatemala

1. Legislation of the United States of America Smuggling of Persons and Trafficking in Persons • Gerardo Chavez Director for the Americas ICE Office of International Affairs • Guatemala

2. Smuggling Vs. Trafficking

3. Smuggling of Migrants Introduction of persons into the United States through deliberate evasion of migration laws. In addition to the illegal introduction of persons into the United States, this crime includes illicit transportation or hiding of illegal persons who already are in US territory.

4. Trafficking in Persons • Trafficking for sexual exploitation where commercial sex is induced through the use of force, fraud, or coercion, or if the person induced to perform such act is under 18 years of age; or, • Recruiting, hiding, transporting, facilitating, or obtaining a person to perform a task or service, through the use of force, fraud, or coercion, with the aim of submitting him/her to involuntary servitude or slavery.

5. Smuggling vs. Trafficking • One of the biggest global challenges is making a correct distinction among both crimes • Smuggling of persons can involve elements of violence • The presence of these aggravating circumstances alone does not constitute Trafficking in Persons • Elements are force, fraud, or coercion with purposes of commercial sexual exploitation or forced labor

6. Legislation of the United States of AmericaSmuggling of Persons

7. General Perspective The Crime and Its Elements • Smuggling of Persons • Elements • Sanctions • Related Crimes • Material Support of Foreign Terrorist Organizations

8. Smuggling of Persons Title 8 of the US Code, Section 1324 • Illegally bringing persons to a place which has not been designated as Port of Entry into the United States • Transporting illegal persons in the United States • Harboring or hiding illegal persons in the United States • Instigating or inducing illegal persons to enter the United States • Bringing illegal persons into the United States • Attempt • Conspiracy • Complicity / Facilitating perpetration of the crime

9. Bringing them to a place which has not been designated as Point of Entry into the US Title 8 of the US Code, Section 1324(a)(1)(A)(i) • Knowingly bringing an illegal person to the United States • In any way • To a place which has not been designated as Port of Entry into the United States • Knowing the person’s illegal status • Fraud / Intention of committing the crime (9th. Circuit)

10. Transporting Illegal Persons in the United States Title 8 of the US Code, Section 1324(a)(1)(A)(ii) • Knowingly transferring or transporting an illegal person • Negligently knowing or not knowing the person’s illegal status • To a place which has not been designated as Port of Entry into the US • Following up on the illegal presence of the person in the US

11. Concealing or hiding illegal persons in the US Title 8 of the US Code, Section 1324(a)(1)(A)(iii) • Knowingly harboring, hiding, or protecting an illegal person so that he/she is not discovered • Negligently knowing or not knowing that the person has entered the US in an illegal fashion • Carrying out actions which tend to facilitate the presence of an illegal person in the US

12. Instigate or Induce Title 8 of the US Code, Section 1324(a)(1)(A)(iv) • Knowingly instigating or inducing a person to illegally travel to, enter, or reside in the US • Negligently knowing or not knowing the fact that the person’s entry into the US would be illegal The Accused only needs to “Help or Advise” the illegal person. U.S. Vs. He, 245 F. 3er 954 (7mo Circ. 2001)

13. Bringing illegal persons to the US to make a profit Title 8 of the US Code, Section 1324(a)(2)(B)(ii) • Knowingly bringing illegal persons into the US • Negligently knowing or not knowing the fact that the person has not been authorized to travel to, enter, or reside in the US • Committing the crime for commercial or monetary profit • Fraud / Intention to commit the crime (9th. Circuit)

14. Conspiracy Title 8 of the US Code, Section 1324(a)(2)(A)(v)(I) – Title 18 of the US Code, Section 371 • Illegal agreement between two or more persons • Knowing and voluntarily participating in the agreement • Obvious acts by the conspirator to follow up on the agreement

15. Facilitate Perpetration of the Crime Title 8 of the US Code, Section 2 • Knowingly transferring or transporting an illegal person • Negligently knowing or not knowing the person’s illegal status • To a place which has not been designated as a Point of Entry into the US • Following up on the illegal person’s presence in the US

16. Attempt Title 8 of the US Code, Section 1324(a) y (b) • Acting with the mental state required to commit the crime. For example, knowingly bringing, knowingly hiding, etc. • Participating in behavior which constitutes a substantial step toward committing the crime A “Substantial Step” is more than preparation and less than perpetration.

17. Highest Sanctions • 5 - 20 years in prison • Up to US $250,000 in fines • Up to 3 years of probation • If any casualty occurs the sanction may be death penalty or a life sentence

18. Minimum Sanctions Stipulated by Law Title 8 of the US Code, Section 1324(a)(2)(B)(ii) • Bringing persons to make a profit • 1 - 2 illegal persons = 3 years in prison • 3 or more illegal persons = 5 years in prison

19. Case StudyTrafficking in Persons

20. Operation Panda ICE New York Office • ICE, FBI, NY Police Department • Five violent Chinese gangs established in NY, involved in: • Murder attempt • Illegal bets • Smuggling of Persons • Money laundering • Extortion • Falsified products

21. Operation Panda • Imported falsified Chinese merchandise in large containers • False declaration of the merchandise as food • Smugglers used multiple bureaus de change in NY to structure money transfers (less than US $10,000) • In addition, they used an alternative remittance system known as “Goushens” ICE New York Office

22. Operation Panda ICE New York Office • Members of the gang are from the Province of Fujian, China • They smuggled Chinese nationals across the Mexican/US border • They used violence as an intimidation strategy • Chinese nationals were kept hostage until the debt for their transportation (smuggling) had been paid off

23. 100 or more individuals processed under the following charges: Title 18 of the US Code, Section 1962 – Extortion and Conspiracy to Extort Title 18 of the US Code, Section 1959 – Perpetrating Violent Crimes to Facilitate Extortion Title 18 of the US Code, Section 894 – Obtaining Credit through Extortion Title 18 of the US Code, Section 1203 – Taking Hostage Title 18 of the US Code, Section 1956 – International Money Laundering Title 18 of the US Code, Section 1324 – Smuggling of Persons Title 18 of the US Code, Section 1955 – Illegal Bets Title 18 of the US Code, Section 2320 – Smuggling Falsified Products Confiscations 2 weapons US $150,000 Falsified merchandise with a commercial value of more than US $16 million Operation Panda Results

24. Legislation of the United States of AmericaTrafficking in Persons

25. Trafficking Victims Protection Act of 2000 (TVPA) Prosecutorial Remedies and other Tools to end the Exploitation of Children Today Act (PROTECT Act) of 2003 Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA 2003) Trafficking Victims Protection Reauthorization Act of 2005 (TVPRA 2005) US Legislation on Trafficking in Persons

26. Trafficking Victim Protection Act (TVPA) Definition of Trafficking in Persons • Trafficking for sexual exploitation where a commercial sexual act is induced through the use of force, fraud, or coercion, or if the person induced to perform such act is under 18 years of age; or, • Recruiting, hiding, transporting, facilitating, or obtaining a person to perform a task or service, through the use of force, fraud, or coercion, with the aim of subjecting them to involuntary servitude or slavery.

27. Trafficking Victim Protection Act (TVPA) Increasing Sentences • Prison sentences have been increased to 10 - 20 years. • Life sentence is possible when death, kidnapping, or aggravated sexual abuse of a victim occurs as well.

28. Trafficking Victim Protection Act (TVPA) Focus on the Victim as a Central Element • Victims of Trafficking in Persons with an illegal status in the US are treated as victims • Programs have been established to assist victims, including immigration resources • Benefits which have been provided to refugees are also provided to victims of Trafficking in Persons who wish to provide support in processes against those who trafficked them

29. The Crime of Trafficking in Persons Threshold with two Aspects • Was the person retained in order to render services to another person – sexual favors or work – or recruited or transported to be retained for these purposes? • Was the service obtained from the victim through the use of force, threats, psychological manipulation, or confiscation of his/her legal identity documents?

30. The Crime of Trafficking in Persons Trafficking for Sexual Exploitation Recruiting, hiding, transporting, facilitating, or obtaining a person through the use of force, fraud, or coercion for the purpose of a commercial sexual act, or if the person being induced to perform such act is under 18 years of age

31. The Crime of Trafficking in Persons Forced Labor Facilitating or obtaining labor or services from a person through: • Threats to cause serious harm to that person or another person; • Any scheme, plan, or pattern which places the victim in a situation of fear of suffering serious harm; or • Misuse of – or threat to misuse – legal procedures

32. The Crime of Trafficking in Persons Servitude through Retention of Identity Documents Retaining a victim’s identity documents, authentic or presumably authentic, during the course of perpetration of the crime of Trafficking in Persons.

33. The Crime of Trafficking in Persons Terms • Force • Fraud • Coercion

34. Trafficking Victim Protection Act (TVPA) Special Provisions • Physical Evidence • Physical force is NOT required • Psychological coercion • Elements of Non-Defense • Consent to be trafficked • Consent to initially perform an illegal act

35. Trafficking Victim Protection Act (TVPA) Special Provisions • Attempt • Focus on the perpetrator’s attempt • Burden shifted away from the victim • Can be sanctioned in the same manner as the complete crime of Trafficking in Persons

36. Trafficking Victim Protection Act (TVPA) Special Provisions • Victim Protection • Services for the victim • Special immigration services

37. Trafficking Victims Protection Reauthorization Act of 2003 (2003 TVPRA) Special Provisions • “Reauthorizes” the Trafficking Victim Protection Act. • Adds responsibilities to the efforts implemented by the US Government to combat Trafficking: • Information campaigns to combat sexual tourism • Refining Federal Criminal Law • Creates civil action for victims to sue their traffickers • Obligation to report the deed

38. PROTECT Act Prosecutorial Remedies and other Tools to end the Exploitation of Children Today Act (PROTECT Act) of 2003

39. PROTECT Act • Extensive prohibition against sexual tourism • More severe sentences (Up to 30 years for being involved in sexual tourism) • Victim protection is added

40. PROTECT Act • Persons who arrive in the US to participate in illicit actions • Sexual tour operators • Any US citizen who travels abroad to participate in sexual tourism

41. Case StudyTrafficking in Persons

42. Maksimenko • Investigation led by ICE, initiated in 2005 because of reports by two trafficking victims • The main suspect is the Vice-President of “Beauty Search, Inc.” • Managed exotic dancers from Eastern Europe • Smuggled and forced victims to work in strip clubs to pay for their transportation (smuggling) and other fees ICE Detroit Office

43. Maksimenko The System – Coercion Measures • Confiscating passports / identity documents • Imposition of debts of up to US $25,000. • Keeping victims in social/linguistic isolation • Imposition of “rules” to isolate women • Interrogatories, monetary sanctions, rough physical treatment, intimidation, threats of violence, and displaying firearms

44. Maksimenko The System – Coercion Measures • Periodic inspections of women’s apartments while they were working • Microphones/recorders placed in women’s apartments to listen to and tape their conversations • Telling stories – real or fictitious – of women who were abused in the past • Treats of prison and deportation

45. Maksimenko ICE Detroit Office • Eight people were arrested and processed under charges of Forced Labor, Visa Fraud, Smuggling of Persons, Money Laundering, and Extortion • ICE agents executed numerous search orders which resulted in the confiscation of two firearms, two vehicles, and more than US $500,000, most of which were located in multiple safety deposit boxes

46. Strengthen both our statutes and authorities in order to arrest and dismantle criminal organizations Global collaboration is required to defeat smugglers and traffickers at a global level Money is the main artery of criminal organizations – let’s take away the financial incentive from them Make every possible effort to locate and rescue men, women, and children who are victimized by smugglers and traffickers Conclusion

47. Legislation of the United States of America Smuggling of Persons and Trafficking in Persons • Gerardo Chavez Director for the Americas ICE Office of International Affairs • Guatemala