when home is no longer home: sexually trafficked women as a member of a ‘particular social group’ to be granted refugee status
A Graduate Thesis Proposal
Presented to the School of Law and Governance
University of San Carlos
In Partial Fulfillment
Of the Requirement for the Degree
Juris Doctor- International Law Practice
Bea veronica m. lee
UNIVERSITY OF SAN CARLOS
SCHOOL OF LAW AND GOVERNANCE
CERTIFICATE OF ACCEPTABILITY
This research paper entitled “When Home is No Longer Home: Sexually Trafficked Women As A Member Of A ‘Particular Social Group’ To Be Granted Refugee Status” submitted by Bea Veronica M. Lee in partial fulfillment of the degree Juris Doctor – Minor in International Law Practice, has been reviewed by the Panel of Examiners and is recommended for acceptance and approval.
This is to certify that I have reviewed the draft and consider it to be
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TABLE OF CONTENTS
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sTATEMENT OF THE PROBLEM 14
SIGNIFICANCE OF THE STUDY 14
SCOPE AND LIMITATIONS 15
REVIEW OF RELATED LITERATURE 16
BACKGROUND OF THE STUDY
Trafficking in women and children for sexual exploitation has been an increasing problem in the past decades. The United Nations in 2002 has adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (hereinafter, “Palermo Protocol”). The protocol was enacted to address the issue and propose ways to prevent the global problem of human trafficking especially in young women and children. The primary purpose of the Protocol is to prevent and combat trafficking, to protect and assist victims, and to promote international cooperation. The Palermo Protocol also provides for the definition of trafficking, which has three different elements, to wit: (1) An action, consisting of recruitment, transportation, transfer, harboring or receipt of persons; (2) By means of: threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another; and (3) For the purpose of: exploitation including, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude, or the removal of organs.
Sex trafficking is a subcategory of human trafficking where the “exploitation” amounts to forcing victims into prostitution or other commercial sexual services. The U.S’ Department of State 2012 Trafficking in Persons Report (TIP Report) provides that there were 4.5 million victims of sex trafficking worldwide and about ninety-eight percent of these victims were female. The report also reveals that regions where sex trafficking the most prevalent are Southeast Asia, Central and Eastern Europe, Latin American, and Africa. For example, 4.2 out of every 1,000 people are victims of trafficking in Central and Eastern European countries. In the United States, between 14,500 to 17,500 people are trafficked domestically.
Once victims are in the hands of traffickers, they may be subjected to rape, violence, and humiliation. Nayantara’s story is an example of how traffickers prey on the vulnerable in impoverished areas by offering economic opportunities to lure them. Nayantara was a woman from Nepal who met a labor broker who offered her a job as a domestic worker in Lebanon and she eventually went with him. She was brought to India instead and upon arrival, she was stripped of her passport and sold into a brothel. Nayantara was made to endure sexual exploitation with at least thirty-five men a day with only five hours of sleep. Any refusal had resulted to a brutal beating with an iron pole. Eventually, a police raid had occurred and she was arrested. Upon her release, she was sold to another brothel. To be able to exert control over these women, traffickers commonly use psychological manipulation, forced drug use, physical and sexual violence, in addition to threats of violence against the trafficked women’s family members. One Albanian trafficking survivor stated that after she was abducted, her kidnappers often threatened to kill her or her family if she would not comply.
Due to the enactment of the Palermo Protocol, countries have provided remedies to these sexually trafficked victims. In the United States, the Clinton administration had enacted the Trafficking Victims Protection Act of 2000 (“TVPA”). The TVPA criminalizes and enhances the penalties for human trafficking and provide social services and legal benefits to trafficking victims. The TVPA created a special non-immigrant visa class for the trafficking victims called the T-visa. Despite the many statutory benefits upon availing of this visa, such as medical services and possible lawful permanent residence, this remains a limited option for trafficking victims.
There are stringent requirements to be able to be qualified for a t-visa. First, the court must find that the victim is a “victim of a severe form of trafficking in persons,” which must be certified by the Department of Health and Human Services. Second, the trafficking victims must assist investigators in the prosecution. Third, the victim must show that she had suffered extreme hardship involving severe harm upon removal. The TVPA reserves only 5,000 visa issuances per year but from 2014-2015 alone, only 1,223 have been issued.
The stringent requirements also discourage many victims from contacting authorities. Under the certification process alone, it would takes weeks or months before officials would issue such certification and usually, upon the escape of the victims from their traffickers, it is necessary that they are afforded adequate housing or protection. One of many possible reasons for the delay of the issuance of the certificate is because some officials may view sex trafficking victims as criminals who are undeserving of federal services or protection.
In regard to the second requirement, it requires that the victim had to be kidnapped or sold into trafficking, taken to another country, and forced to work in the sex industry. This poses a problem because those women who voluntarily agreed to work in the United States as a sex worker but who find themselves in slave-like conditions are not considered qualified. So if a woman agrees to be smuggled to the United States to work in a brothel in dangerous conditions, she cannot later claim to be an unwilling victim when arrested because she was not “forced or coerced”. This is in contrast to the United Nations’ definition of trafficking because it makes consent irrelevant and focuses on exploitation rather than coercion.
Lastly, in order to qualify for a t-visa, the trafficking victim must be willing to cooperate with the prosecution of their traffickers. Many victims fear retaliation from their traffickers. Retaliation against a victim and her family is a well-founded fear considering the illegal sex industry’s deep ties to organized crime. Even victims from a smaller-scale trafficking may face serious risk because traffickers are often men from the victim’s home country or hometown who fraudulently brought her to the United States with promises of legitimate work. An example is one victim who was rescued from a brothel where she was forced to service twenty-five to thirty men a day had reported that she regularly runs into at least three of her former guards, either not prosecuted or had already been released from prison. Although the availability of the t-visa is one remedy that victims from the United States can avail of, the stringent qualifications has dissuaded many victims from applying considering that they must bring strong evidence against their traffickers.
Another remedy provided in Europe is through a reflection delay. A reflection delay allows the victim to remain in the destination country for a short time before repatriation to the origin country. During this period, the victim is protected from deportation and provided legal and psychological counseling but the government also requires the victim to materially aid the police, testify at trial or at least show a clear intention to cooperate before they are given the residency permit. In essence, the victim’s ability to avoid involuntary repatriation depends on her contribution to the state’s prosecution of the traffickers, rather than on her need for protection. This cooperation requirement is problematic for victims especially those who are unable or unwilling to testify for the fear of her own safety and of her family. Testifying and participating in the proceedings may expose her personal information to the public, making her susceptible to danger.
In the Philippines, Republic Act No. 9208 or the Anti-Trafficking in Persons Act of 2003 is the law that criminalizes all forms of trafficking. It describes all who are considered trafficking victims, the acts done to trafficking victims, and also the different penalties for each act. Apart from penalizing the crime of trafficking, the law also provides for the mandatory services to trafficked persons such as counseling, legal services, and medical or psychological services. Trafficked victims who will testify or about to testify against their traffickers may avail of the Witness Protection Program under Sec. 18 of RA 10364. But this protection is conditioned under the following circumstances: (1) The testimony will be used in the trafficking in persons case or a criminal offense related thereto; (2) The testimony can be substantially corroborated on its material points; and (3) The trafficked person or any member of the family is subjected to threats or injury or there is likelihood that he/she will be killed, forced, intimated, harassed, harassed or corrupted to prevent him/her from testifying.
Countries have progressed and have recognized the problem of transnational trafficking and are providing remedies to at least provide relief to these victims but the focus on most of these remedies are on the prosecution of the traffickers rather than providing aid and protection for the victims. It is necessary to view human trafficking as a human rights issue to protect victims from being re-victimized.
Now under the 1951 Refugee Convention, a “refugee” is defined as: One who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. To qualify to be granted such status, Article 1 states requires that the applicant is unable or unwilling to return to her home country to a fear of being persecuted there.
A claim for refugee status relating to persecution suffered or feared by victims or potential victims of trafficking can arise in a number of situations as discussed in the UNCHR Guidelines on International Protection: The application of Article 1A (2) of the 1951 Convention and 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risked of being trafficked. These situations include the following: (1) The victim may have been trafficked abroad, escaped his or her traffickers and may request protection from the country in which he or she currently resides; (2) A victim may have been trafficked in his or her own country, may have escaped and have fled abroad in search of international protection; and (3) A person may not have been trafficked but may fear becoming a trafficking victim and may have fled abroad in search of international protection.
Re-trafficking or re-victimization
To become refugees under the Convention, the two principal prerequisites of (a) well-founded fear of persecution and (b) causation based on membership must be present.The Board of Immigration Appeals (“BIA”), in Matter of Acosta has interpreted persecution as to include threats to life, confinement, torture and economic restrictions so severe that they constitute a threat to life or freedom.
The fact that the government is not directly causing the persecution is of no matter. In the case of Basova v. INS, a woman applied for asylum, claiming that she was eligible for asylum after being repeatedly abducted and raped by members of the Chehcen mafia for 2 years. Although her claim was denied, the Immigration & Naturalization Service (INS) did not deny her claim on the ground that the persecution was not done by the government but rather, because she could not establish on which ground her fear of being persecuted was banked on, whether it was on race, religion, membership of a particular social group or political opinion. The UNHCR clarifies that the 1951 Convention does not prescribe from whom the persecution must originate from. Similarly, neither do other conventions such as the 1969 Organization of African Unity Refugee Convention, nor the 1984 Cartegana Declaration on refugees, require that the persecutor be the State.
While persecution is most often known to be perpetrated by the government, serious discriminatory or other offensive acts committed by the local police or private individuals, can also be considered persecution if such acts are knowingly tolerated by authorities, or if the latter refuse or are unable to offer effective protection. Privately inflicted abuse will constitute as persecution where such is condoned or tolerated because the state refused or is unable to offer effective protection. But the next question to be answered is whether the acts of non-state agents would fulfill the ‘official quality’ to constitute persecution. These trafficked women may face serious repercussions after their escape or rescue, that upon their return to their country of origin, there may retaliation or reprisals from the trafficking rings or individuals, stand the risk of being re-trafficked, severe community of family ostracism or severe discrimination.
Sex-trafficking involves various human rights abuses which separately or cumulatively, may constitute acts of persecution. Trafficked women are often deprived of their liberty and are forced to perform dangerous and debasing labor and subjected to physical sexual and psychological violence. Other forms of harms that may be experienced are exposure to HIV/AIDS, starvation, induced drug-dependencies and denial of medical treatment. Additionally, many trafficking victims are economically powerless since their earnings have to be turned over to their trafficker. These acts fall within the types of ‘serious’ harm contemplated under 91R (2) of the Migration Act as serious and flagrant violations of international human rights. The department of Immigration and Citizenship of Australia acknowledges that rape and other forms of sexual assault inflict severe pain and both physical and mental suffering and that constitutes cruel, inhuman and degrading treatment as well as torture.
A woman’s individual trafficking experience bears directly on the forms of persecution she fears. One case provides an Albanian survivor of sex trafficking where she was kept under her trafficker’s submission though physical abuse – beatings, rape, and slicing her with knives. Another Albanian trafficking survivor stated that after she was abducted, her kidnappers would threaten her or her family’s well-being if she refuses to comply with their demands. Even after being rescued and repatriated back to her home country, a victim may also still experience re-trafficking or re-victimization. The first concern of a repatriated victim would be that upon arriving back to her home country, she may be intercepted by a local member of a trafficking ring. Victims may also face social marginalization from members of her community and continued weight of debt bondage. The obligation to repay their debt to their traffickers is often reinforced by a local member of the trafficking ring who threatens her and her family.
Trafficked persons, on return to their countries of origin, may be met by similar economic and social situations which made them vulnerable to trafficking in the first place. An example is one young trafficked minor who was initially housed by a children’s NGO upon her return to her country of origin but was later returned to her family, where she had been subjected to abuse before her first trafficking experience. As a result, she again tried to escape her difficult family situation by migrating abroad irregularly and was subsequently trafficked for sexual exploitation for a second time. Threats may also be made to the victim’s family such in one case, threats to traffic the younger sister of the victim if she did not pay her debt was a compelling reason for the victim to return to her trafficking situation. The power of the traffickers when the victim is returned to her country of origin – where often the original recruiter is known to the victim or her family members – is a significant factor in a re-trafficking situation. This is especially the case where financial “debts” are still considered to be “owed” to traffickers. Repaying the trafficker on the other hand, is difficult because a trafficking victim is most often not able to find employment due to her lack of education or qualifications. As a result, many victims see no alternative but to accept another offer abroad, even if it is with the same trafficker.
Another problem victims of human trafficking experience once they are repatriated is the severe social stigma as “prostitute”. The stigma may even result in violence such as rape. Even without revealing about trafficking experience, the knowledge of being out of the country can lead to serious stigmatization. One example is when one victim who was suspected to be trafficked due to her four-year absence from her village had been raped by boys in the community who said “you where there and did this for money, why not do it for us free of charge.” Another example is the case of Thuli, who had been trafficked in the south region of Nepal. She managed to escape but could not stay with her family for more than a few months due to the severe ostracism she encountered from her villagers and school mates.
The concern of this study is to establish that sexually trafficked women are eligible for refugee status under the Convention. To be able to fulfill the two requirements as set forth on the 1951 Refugee Convention, the study would like to establish that the re-victimization or re-trafficking of these victims constitute persecution as defined in the Convention. That repatriation to the country of origin is no longer feasible, most especially if the potential danger of being re-trafficked by the same traffickers exists. Not all trafficking victims are abducted and transported to a foreign country for the purposes of sexual exploitation. The trafficking ring usually involves local traffickers who acquire victims and foreign destinations traffickers who receive and either exploit these women or force them to work as prostitutes.
A typical trafficking story would begin by a victim’s first contact with the trafficker who is typically a recruiter, who is often a trusted friend or known to the community. These traffickers prey over the economically disadvantage women and offer assistance such as promises of well paying jobs overseas. To ensure the consent of these women, the recruiter would agree to pay for the cost and settlement in the foreign country. The recruiter ensures that the transportation, legal documents and travelling cost would be shouldered by him but in reality, victims will be forced to work for free until they pay off their debt. To prevent this kind of persecution or potential persecution, one remedy that many have advocated is the application for refugee status.
STATEMENT OF THE PROBLEM
To carry out the goal, the study seeks to answer the following questions:
Do sexually trafficked victims suffer persecution ambit of the definition under the 1951 Refugee Convention?
Do sexually trafficked victims constitute a “particular social group”?
Do they qualify for refugee status?
SIGNIFICANCE OF THE STUDY
For the Legislators of the Republic of the Philippines
This study is significant because it aims to provide another remedy for victims of human trafficking. Many of these victims come from third world countries and it is the responsibility of the legislators to review current laws and enact new ones that would further strengthen the protection and rehabilitation of these victims and ensure that they are successfully reintegrated back into society.
For the Legal Profession
This study is significant because it provides guidelines and jurisprudence for lawyers and judges when dealing with refugee applications. The study can help be a basis on the grant of refugee applications and ensure that these victims are protected.
For the victims of human trafficking
This study would like to provide another remedy for those victims of transnational trafficking. Apart from the laws provided, the grant of refugee status would ensure the total protection of these victims from her traffickers and allows her to reintegrate and continue her life peacefully.
SCOPE AND LIMITATIONS
The focus of this study would be limited to transnational trafficking, such when a victim is transported outside her country of origin and would cover the obligation of the receiving state to afford adequate protection to the victim. Also, the study would like to focus on two kinds of trafficked women: (1) Whether they were abducted and brought unwillingly to the receiving country for the purposes of sexual exploitation; (2) And women who voluntarily accepted such job and had consented to be brought to another country but was later on subjected to harsh working conditions that would tantamount to the infringement of their dignity and human rights.
Review of Related Literature
As stated, to be eligible to be granted refugee status under the 1951 Convention, the person applying must prove two things: (1) an individual is outside her country of nationality; (2) she has a well founded fear of persecution, for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (3) she is unable or unwilling, because of such fear, to avail herself of the protection of that country. But it is unfortunate that most immigration courts have not granted the applications of refugee status for these sexually trafficked women.
One fundamental reason why there is denial on the claims of these women is due to the absence of their membership of a “particular social group” as required under the Convention. There is a narrow application on the interpretation of “particular social group” by these immigration courts that has made the denial of the application for refugee status difficult to attain. One study has discussed that in Canada’s immigration courts, women who have experienced attempts at human trafficking can be considered as a social group, not because of their experience of trafficking and sexual exploitation, but because they possess the traits of female gender, low socioeconomic status, and youth, on account of which traffickers persecute them.
In the Matter of Acosta, stated that “persecution on account of a membership in a particular social group” encompasses persecution that is directed toward an individual who is a member of a group of persons of whom share a common, immutable characteristic. More generally, a particular social group has been found where the members share an immutable characteristic that they cannot change or should not be required to change. The BIA in this case, interpreted that persecution on account of membership in a particular social group means that persecution directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic. Victims argue that their shared experience creates a common, immutable characteristic that defines them as a particular social group.
But even using this standard has led to the denial of the claims of in immigrant courts. Part of the reason why asylum claims made by trafficking victims have not been successful is because courts, like the United States courts have applied a narrow standard in interpreting what really constitutes a “social group”. The failure to consider trafficking victims as a social group excludes them from refugee status without examining the circumstance that gave rise to their well founded-fear of persecution. Different immigration courts have employed arbitrary analyses by using a discretionary approach, rather than a judicial undertaking to determine whether applicants qualify base on the statute itself. The court says that while persecution may make a group visible as a particular social group in society, it is the characteristic, not the acts of persecution that define a particular social group. In another study, the focus was on women who were sexually trafficked are considered as a particular social group due to their immutable characteristics (characteristics so fundamental to human dignity that a person should not be compelled to forsake it).
Gender as a particular social group
Gender is best defined as a cultural construction, taking into account power relationships between men and women. Gender is further defined by how power affects the identity, status, roles and responsibilities of both men and women. The term ‘gender-related persecution’ refers to the causal relationship between the reason for the persecution and the reason for the persecution, i.e. when the reason for the persecution is related to a person’s gender. In a research paper by Tyler Christensen, it was discussed further that the Immigration and Refugee Board of Canada had issued guidelines gender-related persecution in 1996 that recognized that gender is an innate characteristic and therefore, women may form a particular social group within the definition provided under the Convention. Even in the United Kingdom in their guidelines in 2000 provided that gender may identify particular social groups where characteristics are innate or unchangeable or characteristics that a woman should not be expected to change. It is not the form of persecution directed at them that defines women as a group; it is the fact that, as women, they are perceived as inferior, which then invites persecution upon any of them. Women may be targeted because they are vulnerable, for example the young, elderly or disable.
Those persuading for the inclusion of gender-based persecution for refugee determination argue that there are specific gender-related claims such as but not limited to, persecution due to female genital mutilation, domestic violence, systematic rape, sexual slavery and human trafficking for prostitution. The forcible or deceptive recruitment of women for purposes of sexual exploitation is a form of gender-related violence or abuse that could even lead to death. It can be considered a form of torture and cruel, inhuman or degrading treatment. It can also impose serious restrictions on a woman’s freedom of movement, caused by abduction, incarceration, and/or confiscation of passports or other identity documents. In addition, trafficked women and minors may face serious repercussions after their escape and/or upon return, such as reprisals or retaliation from trafficking rings or individuals, real possibilities of being re-trafficked, severe community or family ostracism, or severe discrimination.
Although gender is not part of the nexus requirement to be granted refugee status, it is widely accepted that it can influence, or dictate, the type of persecution or harm suffered and the reasons for this treatment. What amounts to persecution will depend on the circumstances on each individual case. International human rights law and international criminal law have identified that certain acts, such as sexual violence and serious abuses, can amount to persecution. The forcible or deceptive recruitment for purposes of forced prostitution or sexual exploitation is a form of gender-related violence or abuse that can even lead to death. It imposes serious restrictions on a woman’s freedom of movement, caused by abduction, incarceration, and/or confiscation of passports and other identify documents. Unlike other crimes, such as robbery, for which victims are chosen regardless of status, sex-trafficking disproportionately victimizes women and girls because perpetrators view them as inferior and unworthy of being accorded human rights.
In Lopez-Galarza v. INS, the court noted that legacy Immigration & Naturalization Service Guidelines indicate that “female applicants may face unique ‘gender persecution’ which includes rape and sexual abuse and provide that ‘rape and other forms of severe sexual violence’ are examples of physical harm that constitutes persecution.” Considering that trafficking usually involves entry into prostitution by means of violent force, fraud or coercion, and thus forced sexual acts or rape, it follows that the acts of trafficking should form the basis to establish persecution.
Although, courts have been divided as to whether gender alone can constitute a “social group” yet courts have found that gender in tandem with another element can establish social group. For example, In the Matter of Kasinga, the BIA found that fear of female genital mutation was grounds for granting asylum since it was based on the applicant’s membership in a social group of young women in Togo who had not undergone the ritual mutilation and were opposed to it. In this case, the fact that the victim was targeted based on her gender was dispositive. The BIA determined that the critical element to determine a social group is by common characteristics is whether the persecutors identify the characteristic as a basic for the infliction of harm.
A problem in considering gender-related persecution is that courts, like the United States court is in the position that severe sexual abuse that would amount to persecution, does not differ from beatings, torture, or other forms of domestic violence. As mentioned in one study, there is a misconception on the violence against women, stating that courts often view the “persecution” done to this women as purely personal, stemming from the personal relationships between women and their persecutors. In the same study, a case by the Refugee Review Tribunal of Australia(RRT) was cited as an example that a young Columbian women sought application for asylum after being forced into prostitution because she was tricked into coming to Australia under the pretence of travel and lawful work. The Tribunal found that the applicant’s circumstances did not necessarily provide motivation for the harm she feared because the motivation to lure her into prostitution was based on self-interest to use criminality to earn money. The problem in this ruling is that it contradicts that the UNHCR Trafficking Guidelines that stipulate that although trafficking in persons is primarily motivated for profit, the overriding economic motive does not exclude the possibility of Convention-related grounds in the targeting and selection of victims of trafficking.
All these journals and decided cases have provided a different perspective as to how courts and immigration tribunals decide and view the applications of these victims. The decisions primarily focus on gender-related persecution, such that the reason for the persecution suffered by these women is due to the perspective of inferiority that their persecutors have on them. These victims suffer a great deal of violence and sexual exploitation and it is up the courts to be able to provide adequate remedies, not only to ensure the prosecution of the persecutors but also to ensure that these women are also fully reintegrated back into a safe society.
In order to achieve the objectives of this paper, the researcher intends to adopt the comparative-historical and socio-legal approach as its research methodology.
The comparative-historical approach focus on how the different legal systems and legal cultures have decided the applications of women for refugee status. The socio-legal approach centers on looking at how these case laws can be persuading arguments used in order for the victim to be qualified for her application. In this study, it will use the sources of applicable international conventions and protocols, foreign laws and publications. After which, this study will utilize such findings in order to support and address the question whether the victims do qualify as refugees.
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