Child Trafficking Survivors:
Civil Rights and Legislation
Kathleen Kim, Project Attorney
Lawyers’ Committee for Civil Rights
of the San Francisco Bay Area
Legal Services
Criminal case advocacy
Immigration assistance
Civil remedies
Family law
Criminal Case Advocacy
Victims’ attorneys fully inform their
clients in the appropriate language, of
the opportunity to cooperate with law
enforcement in a criminal case against
their traffickers.
Victims need to be safe and stabilized
before they can act as effective
witnesses
Criminal Case Advocacy cont.
Victim’s attorneys assist their clients to cooperate
with law enforcement agents by:
 informing them of their rights and role as a witness
 preparing them to testify
 explaining timelines and criminal process
 assisting with temporary restraining orders against
traffickers
 following-up after trial with victim impact issues,
restitution, return of property, documents, etc.
 providing legal case management
Immigration Assistance
Immigration attorneys help trafficked
clients assess immigration status and:
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pursue relief such as T or U visas, asylum,
Special Immigrant Juvenile visa, etc.
coordinate with derivative applicants in
country of origin
assist with repatriation if safe and
appropriate
Civil Remedies
Civil attorneys help their clients recover
compensation and other damages from the
traffickers by:
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pursuing the private right of action provided by
the TVPRA
filing wage and hour complaints with the DOL
filing discrimination complaints with the EEOC
filing private suits for violations of the FLSA, CA
labor code, intentional torts and other civil rights
laws
Family Law
Family law attorneys assist their clients
with issues pertaining to child custody,
divorce, domestic violence, temporary
restraining orders, etc.
Role of NGO Legal Services
Trafficking victims need their own attorney to
help them:
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understand the U.S. legal system and their rights
in a culturally and linguistically appropriate setting
understand the criminal legal process and their
role as a victim-witness in a case
access immigration relief
access civil remedies
address other legal issues as they arise
Civil Remedies
Civil attorneys help their clients recover
compensation and other damages from the
traffickers by:



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pursuing the private right of action provided by
the TVPRA
filing wage and hour complaints with the DOL
filing discrimination complaints with the EEOC
filing private suits for violations of the FLSA, CA
labor code, intentional torts and other civil rights
laws
Civil Cases Involving Children
If minor is considered incompetent to
sue, statute of limitations may be tolled
to preserve the causes of action
Guardian ad litem (for the lawsuit) can
be appointed to act as representative
If cause of action is a violation of labor
laws, civil remedies can be pursued
administratively
Fair Labor Standards Act
(29 U.S.C. § 201)
Wage and hour
Compensatory and liquidated damages
and civil penalties
Statute of limitations: 2 years for nonwillful, 3 years for willful
Fair Labor Standards Act
All workers, regardless of immigration
status are entitled to the federal
minimum wage of $5.15 per hour, and
in most cases, time and a half for work
periods beyond forty hours in one
week. Still, the FLSA has specific rules
and some exemptions that may apply to
the industries where many trafficked
workers are found.
Specific rules apply to:
Relatives
Domestic workers
Sex workers
Children
Agricultural workers are protected by the
Migrant and Seasonal Workers Protection Act
An attorney well apprised in employment law
can assess the appropriate amount of wage
and hour recovery for trafficked clients.
Children
The FLSA provides both added
protections and exemptions for
children
Oppressive Child Labor
Hour regulation
Age limitations
Regulation of hazardous occupations
Major Exemption
No minimum age and hazardous job
restrictions when child employed by his
or her parent or person standing in
parent’s place.
Civil Penalties for Child
Labor Violations
For each “oppressive child labor”
violation, child worker is entitled to
$11,000
No private right of action for child labor
violations so report to Department of
Labor
Trafficking Victims Protection
Reauthorization Act, 2005
H.R. 972
kathleen kim:
kathlekim:
Creates a guardian ad litem program for
child victims of trafficking
Guardian Ad Litem
Appointed by ORR with consultation
from an NGO
Guardian must be “qualified.”
Qualifications
Child welfare professional or
Trained on the “nature of problems
encountered by victims of trafficking”
Duties
Report to ORR on whether child is a victim of
trafficking
Conduct interview with child
Investigate facts of case
Work with child’s attorney to determine
eligibility for TVPA relief and benefits
Ensure the promotion of the best interest of
the child
Ensure that child understands legal
proceedings
Child Eligibility for Benefits
ORR reviews guardian ad litem’s report
to determine eligibility
Termination of Appointment
Duties complted
Child leaves U.S.
Child granted LPR status in U.S.
Child reaches 18
Child is placed in custody of parent,
legal guardian, or licensed child welfare
agency
Powers of Guardian Ad Litem
Reasonable access to child including while
child is in detention, with foster family or any
other temporary living situation
Permission to review all non-privileged
information on proceedings
Advance notification of all hearings and
interviews involving the child in connection
with any INA matters or any investigation or
prosecution of the trafficking, and may be
present at such hearings and interviews
24 hour advance notice of child’s transfer to a
different placement
Training
ORR authorized to provide training for
guardian ad litems regarding the special
problems faced by child trafficking
victims and their immigration benefits
and other rights under the TVPA of
2000.
Domestic Trafficking
Establishes a pilot program of residential
treatment facilities for minor victims of
domestic trafficking in the United States.
Establishes a grant program for states and
local law enforcement to work with victim
service providers to investigate and
prosecute acts of domestic trafficking in
persons.
Assembly Bill 22
The California Trafficking Victims
Protection Act
Comprehensive anti-trafficking
legislation
Criminalizes trafficking in the state
Provides access to state social services
Provides a trafficking civil remedy
Creates a victim-counselor privilege