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COMBATING THE TERRORISM OF TRAFFICKING

by Peter Schey

Defined in its simplest terms, terrorism--the act of inflicting terror--comes in many forms. Terrorism is inflicted on children around the world not just in the form of indiscriminate killings, "collateral damage" in wars, disappearances and torture, but also in the operation of international criminal trafficking in children. One child who experienced such terror is Phanupong Khaisri, a four-year old child fighting deportation to Thailand in the United States District Court for the Central District of California (Phanupong v. Ashcroft, No. CV 00-04883-DT (CWx) C.D.Cal.). While after the September 11, 2001, attacks on the World Trade Center and Pentagon the United States Immigration and Naturalization service (INS) wasted no time gearing up for its part in the ensuing war against terrorism, the agency's actions in the war against trafficking have been at best anemic, and at worst have encouraged the clandestine trafficking of human beings to this country.


The case of Phanupong Khaisri is a sad example of the INS's failure to play any significant or positive role in the fight against traffickers of women and children. A few months after his birth, Phanupong's father committed suicide in Thailand because he learned he had contracted the HIV virus. Phanupong's mother was reportedly sold into sexual slavery at the age of 12. Information gathered by the U.S. Government indicates that she is now a prostitute in Bangkok. In February, 2000, she took Phanuphong from his grandparents and sold him to a trafficker, one Suseno Karjopranato. The child was sold for Bt10,000 (about $30). Suseno decided to use Phanupong as a decoy in a scheme to smuggle Lau Sau Chun, a Chinese female, into the United States. Suseno appears to have drugged Phanupong, who was also suffering an ear infection, rash, cold, and chicken pox, so the child would remain compliant and quiet during the trafficking operation. On or about April 10, 2000, Suseno, Chun, and Phanupong took a flight from Bangkok to the United States. The following day, as the group arrived at Los Angeles International Airport and attempted to pass through INS inspection using false passports, Chun and Phanupong were effectively the kidnap victims of Suseno.


INS agents quickly uncovered that the group's travel documents were fraudulent. Suseno confessed that he was trafficking Chu into the United States, and that Phanupong was being used as a decoy in the illicit operation. Rather than pursue a criminal investigation of Suseno, or refer him for prosecution to the United States Attorney's Office, INS officers immediately deported Suseno back to Thailand as if he was guilty of no more than a minor infraction of the immigration laws. In fact, he was clearly guilty of several felonies, including attempting to enter the United States on a false passport and trafficking in women and children. The INS just as quickly deported the female victim, offering her no social services or protection from retribution by those who sought to traffic her into this country.


For his part, Phanupong spent the following week at White Memorial Hospital. The INS thereafter transferred him to a hotel where it appears he was kept alone in a room under the "care" of an armed private security guard. On April 27, 2000, at the request of members of the Thai community in Los Angeles, a licensed psychologist examined Phanupong. Phanupong exhibited symptoms of serious psychological trauma: insomnia, nightmares, fear of the dark, and constant crying. As the INS needed more time to obtain travel documents to deport Phanupong to Thailand, he was temporarily released to the custody of the Thai Consul General in Los Angeles, who in turn asked a community-based group, the Thai Community Development Center (CDC), to house the child for a few days. Phanupong was transferred to the home of a social worker employed by the Thai CDC. He continued to experience nightmares and showed signs of illness, including a deep chest cough.


While Phanupong's medical condition appeared to worsen, INS agents commenced a secret effort to effect his rapid removal from the United States. In stark contrast to its treatment of Elian Gonzales, a Cuban minor who was deported only after the INS had thoroughly explored all possible claims he may have possessed to remain in this country, and his father came to the United States to "prove" his competency to care for his son, the INS ran roughshod over Phanupong's rights.


Pursuant to U.S. law, any alien--including a minor--who appears at a port of entry is an "applicant for admission" to the United States. The applicant for admission may apply for asylum and/or "parole" into the country for humanitarian reasons. In order to terminate whatever rights Phanupong possessed, INS agents secretly requested that Thai consular officials in Los Angeles "withdraw" the child's "application for admission" to the United States. In this way the child could be immediately removed to Thailand without a hearing before an Immigration Judge or consideration of any rights he may have possessed to remain in this country. With complete indifference to Phanupong's welfare, Thai officials quickly agreed to "withdraw" his application for admission. Pursuant to the putative authority vested in it by the Thai Consulate, the INS next declared it would remove plaintiff Phanupong to Thailand on May 4, 2000. Under no circumstances would the INS have ever asked Cuban authorities to "withdraw" whatever rights Elian Gonzales possessed to remain in the United States.


The Thai Community Development Center sought the assistance of the Center for Human Rights and Constitutional Law to protect whatever rights Phanupong possessed to remain in this country. The INS denied the Center's requests to delay Phanupong's removal. On the morning of May 4, 2000, as INS officers appeared to pick up Phanupong and transport him to the airport for a flight to Thailand, he was sequestered in my home as we finalized a complaint and application for a temporary restraining order. The pleadings were filed in the U.S. District Court in Los Angeles. Hours later a hearing was held and Judge Dickran Tevrizian issued a temporary restraining order blocking Phanupong's removal from the country and appointing two representatives of the Thai Community Development Center as his guardians ad litem.
In July 2000 Judge Tevrizian issued a preliminary injunction in which he continued to bar Phanupong's removal to Thailand, again refused to transfer custody of Phanupong back to the INS, and ordered the agency to accept and process an application for asylum based upon Phanupong's persecution at the hands of traffickers operating either with the acquiescence of the Thai Government or beyond its control.


In July 2001 Attorney General Aschroft met with Phanupong's caretakers and lawyers to learn more about the case. After the meeting he announced that Phanupong would be granted "humanitarian parole" allowing the child to temporarily remain in the U.S. until the INS adjudicates an application for a Trafficking Act visa we filed on Phanupong's behalf in June. Thus, for the first time, the U.S. Government at least temporarily suspended its effort to summarily deport Phanupong to Thailand. The Attorney General's decision was a major step in Phanupong's fight for legal protection in this country.


Within the past week we have filed a motion to amend the federal court complaint in several respects. First, we challenge the failure of the INS to issue regulations implementing the Trafficking Act. The Act provides protection from deportation to victims of severe forms of trafficking. While the INS has now spent almost a year drafting regulations to implement these protections, the agency continues to arrest, detain and deport trafficking victims as if the Act didn't exist. Second, we challenge the INS's refusal to appoint guardians ad litem and lawyers for unaccompanied children of tender years caught up in removal proceedings. These children obviously lack the mental and physical capacity to meaningfully speak for themselves in matters pertaining to their right to remain in the U.S.


The Bureau of Intelligence and Research of the U.S. Department. of State estimates that 45,000 to 50,000 women and children are trafficked into the U.S. each year. These victims of international trafficking syndicates suffer severe violations of their most basic human rights. They experience the functional equivalent of international kidnapping. They are transported thousands of miles from their homes, forced into slavery or indentured servitude, and often used for sexual exploitation. The Trafficking Act is a major milestone in the battle against international trafficking in women and children. However, unless and until the INS and federal prosecutors bring themselves into compliance with the Act, criminal traffickers like Suseno Karjopranato will continue to operate with impunity.


When it came to fighting terrorism the INS was able to produce new regulations regarding the detention of aliens within a matter of days. There is no reason why it should take a year or longer for the agency to issue regulations implementing the Trafficking Act. While one branch of the INS is writing regulations to protect trafficking victims, another branch continues to detain and deport them. So the terror experienced by trafficking victims continues unabated, and criminal traffickers continue to ply their trade in human beings in the U.S. with almost total impunity. Had Suseno Karjoprana attempted to enter the U.S. on a false passport transporting an explosive or a single marijuana cigarette, he would have been detained and referred for criminal prosecution. Because his illicit cargo was a woman and a child, he walked away scot-free, and was probably provided a free airline meal and movie on his flight back to Thailand.

Peter A. Schey is President of the Center for Human Rights and Constitutional Law and serves as lead counsel for Phanupong Khaisri.


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