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
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
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
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
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