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PRESENTED AT JOHNS HOPKINS UNIVERSITY NOVEMBER 1, 2004 SPONSORED BY THE PROTECTION PROJECT B. KENT FELTY
A.) Trafficking Victims Protection Act B.) Compensation and International Law: Why should there be restitution? In criminal cases the punitive aspect is jail time. With a civil case the punitive aspect is money, money that goes to the victim to enable her or him to start a new life. C.) U.N. Protocol 2. INTRODUCTION BY B. KENT FELTY Yesterday I came in and walked straight to the Mall. I went into the Smithsonian and saw the original Star Spangled Banner. I saw the new World War II memorial and the Vietnam Veterans memorial and ended up at the Lincoln Memorial. It was after dark but I took the time to read the two great speeches that are engraved inside that wonderful monument – the Gettysburg Address and the 2nd Inaugural Address, which I had never fully read before. Lincoln gave that address as the Civil War came to an end and in it he talks about guilt – the obvious guilt of those who profited unjustly from slave labor and the less obvious guilt of those who did nothing about that injustice. The blood shed by North and South was in Lincoln’s view the cost of sins of commission and sins of omission. I was also fortunate enough to visit London with my wife this past summer. Again we were inspecting monuments. Right next to the Houses of Parliament, on the banks of the Thames River is a very small park with two monuments. The more ornate monument is built to honor William Wilberforce and the English Abolitionists – a group that started across the river at a Bible Study in Clapham, and grew powerful enough to shake the British Empire into action and out of the slave business. The other monument is really a sculpture – by Rodin – the Burghers of Calais. These men in bronze are in chains and in agony – the leaders of their coastal town. They have offered themselves to the English King to prevent the wholesale destruction of all they love. They have interceded. Today I will offer a few thoughts to you all on two cases that I have handled recently in the hope that we will not just be “hearers of the Word, but doers also.” New Slavery is a serious problem. Dr. Kevin Bales in his book “Disposable People” estimates conservatively that there are approximately 24 million people enslaved today. I commend the book – it is really all I know on the subject told in much better fashion. For more technical help with the Immigration or Litigation problems that arise out of human trafficking I would recommend AILA (www.aila.org) resources. Approximately two years ago I was called by a local citizen in my hometown of Tulsa, Oklahoma named Mark Massey. Mark told me that three or four Indian men had visited his church and were being abused and held against their will in a steel factory within sight of my office in downtown Tulsa. I was busy and skeptical but Mark was persistent. After the “employer” attempted to remove seven (7) of these men from the United States and after the I.N.S. had intervened in the Atlanta Airport to free those men, I became involved – not really knowing much more than a wrong of some sort had been committed. The lesson for me was twofold: first, all it takes is one concerned citizen to change many lives and two; the new slavery is often right in our backyard. Most of you are far more expert than I in human trafficking and Dr. Mattar has already given a thorough presentation of the Trafficking Victims Protection Act of 2000 and the Trafficking Victims Protection Reauthorization Act of 2003. As I mentioned Dr. Bales estimates conservatively that there are approximately twenty four (24) million people living in some variation of slavery – from sex slaves in Thailand to domestic servants in New York, London and Paris. Dr. Bales distinguishes between the old slavery and the new slavery and notes that new slavery cuts into any population that is economically vulnerable, regardless of religion, sex or race. In the two cases I am handling the victims happen to be skilled Indian welders and ship fitters. They vary in age from early 20s to late 40s. They are Christian, Muslim, Hindu and Sikh. They are from almost every IndianState. 3. THE JOHN PICKLE CASE As I mentioned, Mark Massey moved the I.N.S. to intervene at the Atlanta Airport. (A former prison guard employed by John Pickle Co. had accompanied the men from Tulsa to Atlanta to make sure they boarded each flight). Shortly thereafter Mark arranged for these men to meet with me and tell their story. I will not go into all of the details but suffice to say that the men were part of a third group to be transported to the John Pickle Factory. There were 52 men in all and they were promised the American Dream – American wages, a long term job, housing, food, medical, green cards for the whole family etc… The company not only lied to the men, they lied to the U.S. consulate, claiming that the men were only training for eventual placement in Kuwait, which enabled them to get a trainee visa. When the men arrived, they were housed in a converted section of the factory, which came to be known as the “Cramelot Inn.” Apples were split four ways, milk was rationed and the men were told they would be sent back to India if they complained, or, if they ran away, the FBI would catch them and put them in prison. A sign was posted, an armed guard was set up – the entire grounds were ringed with barbed wire. Their passports and travel documents were confiscated. They were paid $2 to $3 per hour for grueling, hot work; building very sophisticated oil field products for shipment all over the world. When the group of 7 returned and the media reported their story and a lawsuit was filed, the remainder met my wife and I one very cold February night in a part of Tulsa that I would not normally visit – a very bleak part of town. The men had crawled under the fence and hidden behind a cinder block hamburger stand. I spotted two of them that standing nervously in front of the hamburger stand, watching for me. I will never forget that first meeting. There were a lot of tears. Let me make a note here that media relations are very very important and can be very very helpful. But, remember that if you intend to file a lawsuit your Judge and Jury are very likely to read anything that you say. So, be brief, lay out your theme (in our Tulsa case it was “virtual slavery”) but also be careful not to come across as a loose cannon or publicity hound. Be humble but be bold. After the first meeting and in very short order Mark Massey arranged for the remainder of the Pickle men to escape. It was snowing as Mark’s church friends and family whisked into the factory grounds and men threw suitcases and themselves into three or four huge vans. The Vice President of the company followed the vans but so did the local television stations. He stayed in his car as the men ate cake and drank soft drinks and cried and laughed, under the glare of television lights. Then the real work began. Mark had land and a large farm house in the small community of Pretty Water, Oklahoma. Within a month he had moved his own family out and 52 men in. They lived on that farm for nearly a year as yet another hero entered into their lives – Joe McDoulett of Catholic Charities. I had absolutely no experience or knowledge in Immigration Law. Joe called me and offered his help. From that point on, he managed the regular business of his Oklahoma City Office and worked at night and on weekends taking sworn affidavits and preparing T visa applications. The sworn affidavits are a must. They not only help with the T visas but they anticipate motions for summary judgment and trial preparation which are bound to come and come too fast to sit down with 52 men and get detailed stories within the time frame set by the Courts and Rules of Civil Procedure. This front end investment is critical. It also serves to lock victims into a true story, in the event they want to change their story later when pressure and witness tampering issues may arise. To obtain a T visa one must generally prove two things; 1.) The applicant was transported by fraud, force or duress with the intent of subjecting that person to involuntary servitude and 2.) The applicant will suffer severe unusual harm if removed from the United States. This is by far the hardest visa to obtain. I believe to date a little over 300 have been issued. Fifty two (52) were issued to the John Pickle men. This is very curious in light of the fact that every NGO and Governmental Agency agrees that there are approximately 20,000 persons trafficked into the United States every year who should qualify for the visa. I do not see the big picture clearly and cannot tell you why things are as they are. But, I will tell you our story and let you draw your own conclusions. The most difficult hurdle to overcome in my opinion is the Law Enforcement Declaration (LED). The T visa team at the Vermont Service Center assume that every time a person is trafficked by fraud, force etc… the FBI or other Law Enforcement Agency will immediately jump to action and commit to prosecution. This is simply not the case, especially when dealing with cases that fall outside of the stereotype. The stereotypical victim of human trafficking is a young woman brutalized, raped and put to work in a Chicago whorehouse or a teenager forced to run drugs across the Southern border, or a woman chained to a sewing machine in Los Angeles. Those are the easy cases. I also believe those cases are generally better left to criminal prosecution since the likelihood of actually recovering money from covert illegal “businesses” is not very high. The traffickers are more sophisticated and have branched out. They know that in any overpopulated underemployed society there is a ready availability of men who will give all they have to make their lives and the lives of their families better. These traffickers are much harder to spot and much harder to prosecute. They are usually sophisticated and even likeable. They are pragmatic. They see that manufacturing jobs in the United States are being lost to nations where labor is cheap. So, to compete, they do the logical, import wages scales and employment practices from nations like India and China and totally disregard American Laws and values. I make no judgment on the allocation of resources in a time of war and domestic terrorism. But, my experience is that the FBI and other Law Enforcement are very very slow in acting on the types of trafficking cases that fall outside of the stereotype. It is worth noting here, that these cases require a team of committed individuals. No one person can do all that is required. In my case, Joe McDoulett of Catholic Charities was the Immigration point man. On the civil side I saw that the case would be expensive so I recruited the largest Plaintiffs’ firm in my hometown. The unfortunate thing about that decision is that the name partner happened to be running for Governor and had no time to devote to the case. His partners were committed to making quick money while he was gone. These cases do not generate quick money. They require almost naïve devotion, which is in short supply at successful firms – (which may be why those firms are successful to begin with). The big firm had no staying power and abandoned the cause. I was at that point saved by a Johnny Parker, a professor at the University of Tulsa School of Law and Robert Canino of the EEOC. In fact, to this day, these two men bear the great weight and deserve the lion’s share of credit for our success. A great TEAM is important. In the Pickle case, the FBI interviewed the victims, determined probable cause existed (a crime or crimes had been committed and the Defendants probably committed those crimes) but refused to provide an LED. We received an Intent to Deny letter from the newly created BCIS – basically giving us another ninety (90) days to provide more evidence (primarily evidence that a criminal investigation was ongoing and the men were assisting in that investigation). In our response we provided everything BUT a formal LED – e mails, newspaper articles, letters… all confirming an investigation. Very late in the game, a determined Attorney at DOJ Civil Rights in D.C. stuck his neck out and finally got permission to write a one paragraph letter confirming an investigation. That letter put us over the hump. I will always be grateful for his courage. Other supporting materials included a letter from Robert Canino, Regional Attorney for the EEOC, stating that the EEOC had joined the civil action and needed the men to stay in the USA to present evidence. As a trial attorney in the civil action I wrote a letter in support, explaining very fundamentally that if we had no witnesses we would have no trial. If there is no trial there is no justice and the intent of Congress is thwarted. Families in India had been threatened and or bribes had been attempted. We had to keep very close track of those phone calls and provide additional affidavits along the lines of “somebody called my wife and told her to tell me to drop my case in the United States or else…” And of course we persevered in the civil case that had been filed – uncovering a rancid scheme to abuse and exploit, complete with e mails expressing a desire to reduce the men to so many body parts and “Fed-X” them back to India. After almost a year, the HHS granted certification as victims of human trafficking. This was at a point where the men had been living in Mark’s house and living on community charity and garage sale proceeds. The HHS certification gave them what is called continued presence status which qualifies a person for a temporary work authorization. This is not a grant of a T visa but it is a very big step. Humanitarian needs become very pressing in these types of cases and do not abate as legal needs are also being met – humanitarian needs do not conform to a District Court Scheduling Order. Also, I have found that the traffickers are well represented by zealous advocates who understand the hardship of the victims, the victims’ families and the lawyers who choose to take these cases. They go very fast and furious when they see weakness – papering the victims’ advocate to death with voluminous labor intensive discovery, or, they go very slow, knowing that the victims cannot support themselves and miss their families. In the Pickle case we were blessed and the dominos did fall – from continued presence status and work authorization the men were able to leave Pretty Water, Oklahoma and seek employment – which they readily found. A few months after certification and continued presence word came that the T visas had been granted – a major victory and tribute to Joe McDoulett’s perseverance. The T visa is important because it is granted for a set term of 3 years and carries derivative qualification for immediate family members. Also, be aware that the T visa is a non immigrant visa but, at the end of three years status can be adjusted on the basis and grounds already proved in the original application and permanent residency can be granted (a green card). It is an indispensable prerequisite to successful criminal or civil litigation as it gives the victims the opportunity to be self supporting. The Pickle case was tried to Judge Claire Egan in the Northern District of Oklahoma. Judge Egan bi-furcated the trial into two phases – phase one was intended to resolve the simple question of whether the men were “employees” or “trainees.” In the course of presenting evidence on that issue, many other questions were answered. So many in fact that the second phase will primarily deal with damages – the “how much do we pay the victims” phase. It has been a rewarding case to date, in many intangible ways. We are hoping that the rewards will become tangible in phase two. I have provided the Complaints filed in the Pickle case and the Falcon case which detail our causes of action and relief sought, which should answer Dr. Mattar’s questions on restitution and compensation. Each cause of action plead carries a different measure of damages – most carry the possibility of punitive damages and the hope that large verdicts will not just put the defendant in that particular case out of business but also send a message to others who traffic and exploit human beings. 3. THE FALCON STEEL CASE The Falcon Steel Case dovetails and connects to the John Pickle Case through one man – Mark Massey. Again, his example of concerned citizenship and faith changed lives. When the John Pickle men were granted work authorization, Mark sought out employment for them – primarily in the shipyards and oilfields of South Louisiana. During the course of finding them jobs – driving countless miles between his home in Oklahoma and Houma or New Orleans or Morgan City – Mark stumbled on other Indian men in desperate circumstances. The “Falcon” men had been recruited by B. J. Singh, the Indian Partner and muscle, Terry Forrester, the American Labor Consultant and Chad Chandler, the owner of Falcon Steel Structures, a Mississippi Corporation doing no real manufacturing business anywhere. The Falcon men paid this partnership an average of $13,000.00 each. They were promised the same things the John Pickle men were promised – American wages, housing, food, medical, long term employment, green cards… When they arrived, they found that they had been tricked. Falcon Steel Structures had no facility and made nothing. Chad Chandler and partners did have a scheme to make more money – much more than they had made on the service fees in India. They shopped the men around South Louisiana, where the prevailing wage for welders ranges between $14 to $20 per hour. The partnership placed them with reputable shipyards competing with shipyards in Singapore and other places. (Shipyards where labor was cheaper.) The men who were placed do not to this day know how much the Louisiana shipyards paid Chad Chandler. All they know is that they were paid between $6 and $7 per hour and told not to complain or they would be sent back to India. And they were the lucky ones - many if not most never worked at all but were nevertheless forced to stay “handy” in the event they were needed. These men survived by the charity of those who worked and later, by a concerned community. Best estimates are that the Falcon partnership transported more than 300 men via false promises and kept them under control with threats of deportation and prison. Mark and told me about these men as I struggled to keep my head above water in the Pickle case. I declined to get involved out of a sense of self preservation. Then Mark was arrested for aggravated battery on Chad Chandler. Obviously Mark is innocent. But, as you all know, being innocent and proving innocence are separate things. Chad had chased Mark around Baton Rouge early one morning as Mark helped some of the Falcon men escape the Motel where they were being held. Mark pulled into the Baton Rouge Sheriff’s office to escape and seek protection. Chad came in later with a bump on his leg allegedly caused when Mark hit Chad with his car. Instead of protecting Mark, the Sheriff put him in jail, telling him all the Indians ought to be sent back home. The case is still pending but needless to say, I think the District Attorney will do the right thing and dismiss. (Mark’s arrest and imprisonment had a twofold effect. First, it helped me decide to get involved and second it terrified the Indian men who saw that Chad Chandler could indeed have people put in jail.) Nevertheless, we filed a civil lawsuit, sounding primarily in common law fraud and RICO violations. 212 men are named as Plaintiffs. It took about a year to interview each man and get a sworn affidavit before we filed that lawsuit. During that time, the men ran out of status on their H2B visas and accompanying work authorizations. With the help of Catholic Charities in New Orleans they self filed T visa applications and did in some cases obtain work authorization – not because they were granted the visa or even continued presence status but rather because so many had filed that the Vermont Service Center was overloaded and ninety days passed – at which point the men became automatically eligible to work. However, as with any large group of Plaintiffs, management of information and meeting needs was and is not easy. We are running into the same problems we had with the Pickle case. The FBI and U.S. Attorney are overwhelmed with a war on terror and other pressing needs. The allocation of millions of hours and dollars to a worker exploitation/human trafficking case is not a high priority. And, since it is not high priority, there is no official law enforcement declaration. And, without a law enforcement declaration, it is very very difficult to get a T visa, or even continued presence status. And without a T visa, continued presence status or work authorization, the civil case is carried along on fumes. Our attrition rate was very good, at first. The men were excited and working. As work authorizations expired they were forced into an underground economy of undocumented temporary work. A few were detained. Immigration bonds are not like jail bonds. Because the bondsman considers immigration cases high risk the person detained must either secure the bond by a credit card or real property in the full amount. The hardship is immense as all the men pool their resources to raise a bond of $7,500.00 or more for one man. A cultural note here: I had no real experience with people from India prior to these cases that I have mentioned and national stereotypes are just that, stereotypes. But, working with nearly 300 men from India this past three years, I have noticed a common denominator. They do not do well outside of the law. They have an immense respect for legal status and they understand when they are out of status. They sometimes have severe emotional problems as a consequence – humiliated that they are now “criminals.” They desperately want to prove that they can be “good Americans” and become severely depressed when forced to decide between seeking undocumented work or letting the debt collectors in India ransack their homes and abuse their families. The T visa is designed to prevent this kind of situation. As in Pickle, absent a formal law enforcement declaration, I have been forced to respond to Intent to Deny letters received from BCIS. The formula is the same as Pickle. We have provided sworn statements from every man that tells a compelling story if taken as a whole. We have provided other evidence of intimidation and threats and hardship. But, once again, we are forced to rely on informal statements and notes from the FBI and law enforcement. While we are jumping through Immigration hoops, the Defendants pay thousands and perhaps hundreds of thousands of dollars to acquire excellent legal representation and stonewall. The Defendants send “insiders” and “moles” into every group of Plaintiffs. The problem is so great that I must assume anything I say or write will find its way to opposing counsel. These persons do one of two things: Either they attack and intimidate (we have had two men stabbed) or they cajole and bribe (“We can get you a green card and permanent labor certificate – what has Felty gotten you but trouble.”) Because there is apparently little communication between Homeland Security, DOJ and the Department of Labor, some men who have thrown in their lot with the Defendants are in fact rewarded with status and jobs, while the men who are playing by the rules are rewarded with more demands for more evidence with very little hope of anything good happening fast. 4. CONCLUSION If I have been unfairly critical of any Government agency, I have been misunderstood. My desire today was simply to tell two stories – one with a happy ending in sight – the John Pickle Case – the other story – Falcon Steel – with a very uncertain ending. To be sure the facts of the two cases are different. Pickle was a very compact case – the men all came basically at the same time and were basically treated the same way and they hung together and received help from the community as the Government waded through the facts. The Falcon case is much larger and the Defendants much more cunning. The Falcon defendants did not use armed guards and did not holding places with barbed wire or pay less than minimum wage when the men were placed for work. Instead they rested in a greater understanding of those they victimized, understanding specifically that the service fees borrowed and owed in India would tie the men to them in the United States and if these men were given little doses of hope they would not rebel, as the men in Oklahoma had done. Needs I see are as follows: The Department of State must screen and be on the alert for trafficking scams, especially in nations which are overpopulated and underemployed. In the Falcon case the Labor Consultant shopped consulates and embassies from U.A.E. to Mumbai, to Chennai to Singapore looking for someone who would swallow his story. The Department of Labor must completely modify the permanent labor certificate program and the H2B program which have become prime vehicles for immigration fraud, abuse of workers and trafficking in human beings. The Department of Justice and Homeland Security must err on the side of granting quick status to those who have made a bona fide case that they were transported by fraud or force without believing that they will be committed to millions of dollars and hours. The applicants must not be forced to an elevated or unrealistic burden of proof. Concerned citizens must not look the other way when they see aliens in distress. When we become too busy to help those who cannot help themselves. |
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