BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 988 (Brownley)                                           
          As Amended May 18, 2009 
          Hearing date:  July 2, 2009
          Penal Code
          SM:br

                                   HUMAN TRAFFICKING  

                                       HISTORY

          Source:  Author

          Prior Legislation: AB 2810 (Brownley) - Ch. 358, Stats. 2008
                       AB 1278 (Lieber) Ch.r258, Stats. 2008
                       AB 22(Lieber) - Ch. 240, Stats. 2005
                       SB 180 (Kuehl) - Ch. 239, Stats. 2005
                       SB 741 (Morrow) - 2005; failed in Senate Public  
          Safety

          Support: Legal Services for Prisoners with Children; Junior  
                   League of Los Angeles, Inc.; California Commission on  
                   the Status of Women; Crime Victims United; California  
                   Catholic Conference

          Opposition:None

          Assembly Floor Vote:  Ayes  66 - Noes  10


                                      KEY ISSUES
           
          SHOULD THE COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING  
          (POST) BE REQUIRED, UPON THE NEXT REGULARLY SCHEDULED REVIEW OF  




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          A TRAINING MODULE RELATING TO HUMAN TRAFFICKING, CREATE AND MAKE  
          AVAILABLE TRAINING CONTENT ON THE U VISA AS AUTHORIZED BY THE  
          FEDERAL VICTIMS OF TRAFFICKING AND VIOLENCE PROTECTION ACT OF  
          2000?

                                                                (CONTINUED)


          SHOULD IT BE REQUIRED THAT THE TRAINING INCLUDE HOW TO INFORM  
          VICTIMS ABOUT THE U VISA AND HOW TO APPLY FOR A U VISA, AS  
          SPECIFIED?

          SHOULD IT BE REQUIRED THAT THE TRAINING CONTENT BE DESIGNED FOR, AND  
          MADE AVAILABLE TO, PEACE OFFICERS EMPLOYED BY LAW ENFORCEMENT  
          AGENCIES THAT PARTICIPATE IN, AND COMPLY WITH, TRAINING STANDARDS  
          SET FORTH BY THE COMMISSION?


                                       PURPOSE

          The purpose of this bill is to (1) require that the Commission  
          on Peace Officer Standards and Training (POST), upon the next  
          regularly scheduled review of a training module relating to  
          human trafficking, create and make available training content on  
          the U Visa as authorized by the federal Victims of Trafficking  
          and Violence Protection Act of 2000; (2) require that the  
          training include how to inform victims about the U Visa and how  
          to apply for a U Visa including, but not be limited to, an  
          explanation that it is available to noncitizen crime victims who  
          have suffered substantial physical or mental abuse from criminal  
          activity, have information regarding criminal activity, and  
          assist government officials in the investigation or prosecution  
          of that criminal activity, if the criminal activity violated  
          United States law or occurred in the United States, including  
          Indian country and military installations, or in the territories  
          and possessions of the United States; and (3) require that the  
          training content be designed for, and made available to, peace  
          officers employed by law enforcement agencies that participate  
          in, and comply with, training standards set forth by the  
          commission.




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           Existing law  provides that any person who deprives or violates  
          the personal liberty of another with the intent to effect or  
          maintain a felony violation of specified sex crimes, extortion,  
          or to obtain forced labor or services is guilty of human  
          trafficking.  If committed against an adult, this offense is  
          punishable by 3, 4 or 5 years in state prison.  If committed  
          against a minor, this offense is punishable by 4, 6 or 8 years  
          in state prison.  (Penal Code  236.1.)

           Existing law  provides for undocumented immigrants to receive U  
          Visas if they have suffered substantial physical or mental abuse  
          resulting from a wide range of criminal activity, and have been  
          helpful with the investigation and prosecution of the crime.   
          (22 USC 7101.)

           Existing law  requires POST to adopt rules establishing minimum  
          standards relating to physical, mental, and moral fitness that  
          governs the recruitment of specified groups of peace officers.   
          POST is also required to adopt rules establishing minimum  
          standards for training specified peace officers.  (Penal Code   
          13510; 13510.5.)

           Existing law  requires that every law enforcement officer in this  
          state shall participate in expanded training as prescribed and  
          certified by the Commission on Peace Officers Standards and  
          Training.  (Penal Code  13519.4 (g).)

           Existing law  requires that the POST Commission shall implement  
          by January 1, 2007, a course or courses of instruction for the  
          training of law enforcement officers in California in the  
          handling of human trafficking complaints and also shall develop  
          guidelines for law enforcement response to human trafficking.   
          The course or courses of instruction and the guidelines shall  
          stress the dynamics and manifestations of human trafficking,  
          identifying and communicating with victims, providing  
          documentation that satisfy the law enforcement agency  
          endorsement (LEA) required by federal law, collaboration with  
          federal law enforcement officials, therapeutically appropriate  
          investigative techniques, the availability of civil and  




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          immigration remedies and community resources, and protection of  
          the victim.  Where appropriate, the training presenters shall  
          include human trafficking experts with experience in the  
          delivery of direct services to victims of human trafficking.  
          Completion of the course may be satisfied by telecommunication,  
          video training tape, or other instruction.  (Penal Code   
          13519.14 (a).)

           Existing law  requires that the course of instruction, the  
          learning and performance objectives, the standards for the  
          training, and the guidelines shall be developed by the  
          commission in consultation with appropriate groups and  
          individuals having an interest and expertise in the field of  
          human trafficking.  The commission, in consultation with these  
          groups and individuals, shall review existing training programs  
          to determine in what ways human trafficking training may be  
          included as a part of ongoing programs.  (Penal Code  13519.14  
          (c) and (d).)

           Existing law  states that participation in the course or courses  
          specified in this section by peace officers or the agencies  
          employing them is voluntary.  (Penal Code  13519.14 (e).)

           Existing law  provides that any employee of a law enforcement  
          agency who personally receives a report from any person,  
          alleging that the person making the report has been the victim  
          of a sex offense, or was forced to commit an act of prostitution  
          because he or she is the victim of human trafficking, as defined  
          in Section 236.1, shall inform that person that his or her name  
          will become a matter of public record unless he or she requests  
          that it not become a matter of public record, pursuant to  
          Section 6254 of the Government Code.  (Penal Code  293.)  Any  
          written report of an alleged sex offense shall indicate that the  
          alleged victim has been properly informed pursuant to  
          subdivision (a) and shall memorialize his or her response.  
          (Penal Code  293 (a) and (b).)

           Existing law  provides that any person who maliciously publishes,  
          disseminates, or otherwise discloses the location of any  
          trafficking shelter or domestic violence shelter or any place  




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          designated as a trafficking shelter or domestic violence  
          shelter, without the authorization of that trafficking shelter  
          or domestic violence shelter, is guilty of a misdemeanor,  
          punishable by up to six months in county jail, a fine of up to  
          $1000, or both.  (Penal Code  273.7.)

           Existing law  provides that a victim of human trafficking may  
          bring a civil lawsuit for actual damages, compensatory damages,  
          punitive damages, injunctive relief, any combination of those,  
          or any other appropriate relief.  In such a lawsuit the  
          plaintiff may be awarded up to three times his or her actual  
          damages or $10,000, whichever is greater.  In addition, punitive  
          damages may also be awarded upon proof of the defendant's  
          malice, oppression, fraud, or duress in committing the act of  
          human trafficking.  (Civil Code  52.5.)

           Existing law  provides that a trafficking victim has a privilege  
          to refuse to disclose, and to prevent another from disclosing, a  
          confidential communication between the victim and a human  
          trafficking caseworker, as specified.  (Evidence Code  1038 -  
          1038.2.)

           Existing law  provides that no law enforcement agency shall  
          disclose to any person, except the prosecutor, parole officers  
          of the Department of Corrections and Rehabilitation, hearing  
          officers of the parole authority, probation officers of county  
          probation departments, or other persons or public agencies where  
          authorized or required by law, the address of a person who  
          alleges to be the victim of a sex offense or who was forced to  
          commit an act of prostitution because he or she is the victim of  
          human trafficking, as defined in Section 236.1.  (Penal Code   
          293 (c).)

           Existing law  provides that no law enforcement agency shall  
          disclose to any person, except the prosecutor, parole officers  
          of the Department of Corrections and Rehabilitation, hearing  
          officers of the parole authority, probation officers of county  
          probation departments, or other persons or public agencies  
          where authorized or required by law, the name of a person who  
          alleges to be the victim of a sex offense or who was forced to  




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          commit an act of prostitution because he or she is the victim  
          of human trafficking, as defined in Section 236.1, if that  
          person has elected to exercise his or her right pursuant to  
          this section and Section 6254 of the Government Code.  (Penal  
          Code  293 (d).)

           Existing law  provides that parole officers of the Department of  
          Corrections and Rehabilitation and hearing officers of the  
          parole authority, and probation officers of county probation  
          departments, shall be entitled to receive information pursuant  
          to subdivisions (c) and (d) only if the person to whom the  
          information pertains alleges that he or she is the victim of a  
          sex offense or was forced to commit an act of prostitution  
          because he or she is the victim of human trafficking, as defined  
          in Section 236.1, the alleged perpetrator of which is a parolee  
          who is alleged to have committed the offense while on parole, or  
          in the case of a county probation officer, the person who is  
          alleged to have committed the offense is a probationer or is  
          under investigation by a county probation department.  (Penal  
          Code  293.)

           Existing law  provides that the name of a victim of human  
          trafficking may be withheld at the victim's request, or at the  
          request of the victim's parent or guardian if the victim is a  
          minor.  When a person is the victim of more than one crime,  
          information disclosing that the person is a victim of a crime  
          defined in any of the sections of the Penal Code set forth in  
          this subdivision may be deleted at the request of the victim, or  
          the victim's parent or guardian if the victim is a minor, in  
          making the report of the crime, or of any crime or incident  
          accompanying the crime, available to the public in compliance  
          with the requirements of this paragraph.  (Government Code   
          6254 (f)(2).)

           Existing law  states that any provision of a contract that  
          purports to allow a deduction from a person's wages for the cost  
          of emigrating and transporting that person to the United Sates  
          is void as against public policy.  (Civil Code  1670.7.)

           This bill  requires that the POST Commission shall, upon the next  




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          regularly scheduled review of a training module relating to  
          human trafficking, create and make available training content on  
          the U Visa as authorized by the federal Victims of Trafficking  
          and Violence Protection Act of 2000.

           This bill  requires that the training shall include how to inform  
          victims about the U Visa and how to apply for a U Visa.  The  
          training regarding the U Visa shall include, but not be limited  
          to, an explanation that it is available to noncitizen crime  
          victims who have suffered substantial physical or mental abuse  
          from criminal activity, have information regarding criminal  
          activity, and assist government officials in the investigation  
          or prosecution of that criminal activity, if the criminal  
          activity violated United States law or occurred in the United  
          States, including Indian country and military installations, or  
          in the territories and possessions of the United States.

           This bill  requires that the training content shall be designed  
          for, and made available to, peace officers employed by law  
          enforcement agencies that participate in, and comply with,  
          training standards set forth by the commission.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  











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          incarceration.<1>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (citation omitted)  The Governor's declaration of the  
               state of emergency remains in effect to this day.

               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               ----------------------
          <1>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)



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               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  
               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  
               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  
               period of two or three years.<2>

          The final outcome of the panel's tentative decision, as well as  
          any appeal that may be in response to the panel's final  
          decision, is unknown at the time of this writing.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis outlined above.

                                      COMMENTS

          1.  Need for This Bill  
          ---------------------------
          <2>  Three Judge Court Tentative Ruling, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (Feb. 9, 2009).



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          According to the author:

              Due to the underground nature of human trafficking,  
              law enforcement has a hard time finding traffickers  
              and bringing them to justice.  In response to that  
              difficulty, Congress created the "U" visas, which are  
              designed to provide immigration status to  
              non-citizens that are assisting or are willing to  
              assist authorities in the investigation of crimes.

              AB 988 will require the Commission on Peace Officers  
              Standards and Trainings (POST) to create and make  
              available a training module on U Visas.  Since the  
              bill is crafted to state that the POST commission  
              need not update their training module until the next  
              regularly scheduled review the bill.

          2.  Background:  The Problem of Human Trafficking
           
          AB 22 (Lieber) (2005) and SB 180 (Kuehl) (2005) established the  
          California Alliance to Combat Trafficking and Slavery Task Force  
          (hereafter, "Task Force") to examine the issue of human  
          trafficking in California and make findings and recommendations  
          to the Governor, the Attorney General and the Legislature.  The  
          Task Force issued its final report in October 2007.  The report  
          described the phenomenon of human trafficking as follows:

              Traffickers lure victims into the United States with  
              deceptive promises of good jobs and better lives, and  
              then force them to work under brutal and inhuman  
              conditions, and deprive them of their freedom.   
              Victims of human trafficking may be involved in  
              agricultural labor, construction labor, hotel and  
              motel cleaning services, illegal transporters,  
              organized theft rings, pornography, prostitution,  
              restaurant services, domestic services, servile  
              marriage (mail-order brides) and sweatshops.  Once in  
              this country, many suffer extreme physical and mental  
              abuse, including rape, sexual exploitation, torture,  




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              beatings, starvation, death threats and threats to  
              family members.

          (Human Trafficking in California, Final Report of the California  
          Alliance to Combat Trafficking and Slavery Task Force, October  
          2007, pg 16.   
          http://safestate.org/documents/HT_Final_Report_ADA.pdf.)

          3.  The Federal Trafficking Victims Protection Act of 2000  

          In October 2000, the federal Trafficking Victims Protection Act  
          of 2000 (TVPA) was enacted.  (22 USC Sections 7101 et seq.)  The  
          law is comprehensive, addressing the various ways of combating  
          trafficking, including prevention, protection and prosecution.   
          The prevention measures include the authorization of educational  
          and public awareness programs.  Protection and assistance for  
          victims of trafficking include making housing, educational,  
          health-care, job training and other federally-funded social  
          service programs available to assist victims in rebuilding their  
          lives.  Finally, the TVPA provides law enforcement tools to  
          strengthen the prosecution and punishment of traffickers, making  
          human trafficking a federal crime.



          4.  Federal Assistance to Human Trafficking Victims:  T-1 Visa and  
          U Visa  

          The final Task Force report describes the types of assistance  
          available to victims of human trafficking, both US citizens and  
          non-citizens:

              The federal Trafficking Victims Protection Act makes  
              housing, education, health care, job training and  
              other federally funded social service programs  
                                                                                       available to assist victims in rebuilding their  
              lives.  To be eligible the individual must be  
              certified by the U.S. Department of Health and Human  
              Services (DHHS) as a victim of human trafficking.   
              Once certified, the victim becomes eligible for  




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              benefits to the same extent as refugees, including  
              refugee cash, medical assistance and social services.  
               Victims under the age of 18 and those who are U.S.  
              citizens do not need to be certified in order to  
              obtain these benefits.  Individuals not yet certified  
              may be able to obtain interim assistance and services  
              through NGOs.

              Non-citizen victims of human trafficking may be  
              eligible for immigration relief, including:

              T visas.  The TVPA grants non-citizen victims the  
              right to remain in the country legally for up to  
              three years, and then adjust their status to lawful  
              permanent residents.  However, currently, victims  
              cannot become lawful permanent residents because  
              regulations have not yet been developed covering this  
              status adjustment.  In order to qualify for a T visa,  
              applicants must be victims of a severe form of  
              trafficking, face severe and unusual harm if they  
              were sent back to their home country, comply with any  
              reasonable request from law enforcement to assist in  
              the investigation or prosecution of the trafficker  
              and meet other eligibility requirements.  Children  
              under 18 years of age are eligible for a T visa  
              without meeting the requirement to aid in the  
              criminal investigation.  The law provides for the  
              issuance of up to 5,000 T visas to victims per year.

              Continued Presence.  In order to assist in the  
              prosecution of human traffickers, eligible  
              non-citizen victims who are potential witnesses of  
              trafficking may receive temporary immigration relief  
              under the "Continued Presence" provision of federal  
              law.  This designation is granted so that a foreign  
              victim of human trafficking may be present in the  
              U.S. during the investigation and prosecution of the  
              trafficker.  A federal law enforcement officer must  
              initiate a request for Continued Presence.   
              Trafficked victims may apply for a T visa, however,  




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              without having Continued Presence requested on their  
              behalf.

              U visas.  U visas, also created by the federal TVPA,  
              allow non-citizen victims who have suffered  
              substantial physical or mental abuse as a result of  
              being the victims of certain crimes, including  
              trafficking, to remain lawfully in the country for a  
              specified period of time.  Victims must be likely to  
              be helpful with the investigation or prosecution of  
              the crime.  Up to 10,000 U visas may be issued to  
              victims annually.  To obtain a U visa, individuals do  
              not have to be victims of a "severe form of human  
              trafficking," as required for the T visa, and,  
              therefore, more victims may be eligible for a U visa.  
               However, until September 2007, regulations had not  
              been developed on the issuance of U visas, so the  
              U.S. Department of Homeland Security, meanwhile,  
              provided for "U visa interim relief," which has  
              allowed potential recipients of a U visa to remain  
              lawfully in the country pending the issuance of  
              regulations governing U Visas.  Recipients of U visas  
              are not eligible for federal benefits.
              (Note:  The letter, "T," used in T visas relates to a  
              section of the federal code and does not stand for  
              "trafficking."  Similarly, the "U" in U visas refers  
              to a section of the federal code.)

















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          (Human Trafficking in California, Final Report of the California  
          Alliance to Combat Trafficking and Slavery Task Force, October  
          2007, pgs 48-49.   
          http://safestate.org/documents/HT_Final_Report_ADA.pdf.)

          5.  Previous Training Requirements Established for Law Enforcement  

          SB 180 (Kuehl) (2005) also enacted Penal Code Section 13519.14.   
          (Chapter 239, Stats. of 2005.)  That section required the POST  
          Commission to implement by January 1, 2007, a course or courses  
          of instruction for the training of law enforcement officers in  
          California in the handling of human trafficking complaints and  
          also shall develop guidelines for law enforcement response to  
          human trafficking.  It specifies that the training and  
          guidelines shall stress the dynamics and manifestations of human  
          trafficking, identifying and communicating with victims,  
          providing documentation that satisfy the law enforcement agency  
          endorsement required by federal law to obtain the T-1 visa,  
          collaboration with federal law enforcement officials,  
          therapeutically appropriate investigative techniques, the  
          availability of civil and immigration remedies and community  
          resources, and protection of the victim.  Completion of the  
          course may be satisfied by telecommunication, video training  
          tape, or other instruction.  (Penal Code  13519.14 (a).)  It is  
          also required under current law that the training, and the  
          guidelines be developed in consultation with appropriate groups  
          and individuals having an interest and expertise in the field of  
          human trafficking.  (Penal Code  13519.14 (c).)  Participation  
          in this training by peace officers or the agencies employing  
          them is voluntary.  (Penal Code  13519.14 (e).)

          As noted above, AB 22 (Lieber) (2005) and SB 180 (Kuehl) (2005)  
          also established a 19 member Task Force to examine the issue of  
          human trafficking in California and make findings and  
          recommendations to the Governor, the Attorney General and the  
          Legislature.  Notwithstanding the training required by Section  
          13519.14, one of the recommendations of the Task Force was, "The  
          Legislature should mandate a two-hour training session on human  
          trafficking for state and local law enforcement through the  




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          Commission on Peace Officers Standards and Training (POST) that  
          would be offered through a telecourse and learning portal to  
          strengthen the chance of successful identification of victims and  
          prosecution of traffickers.  POST should be encouraged to include  
          human trafficking training for law enforcement in its Basic  
          Academy Curriculum, and law enforcement should include this  
          training during roll-call sessions."  (Human Trafficking in  
          California, Final Report of the California Alliance to Combat  
          Trafficking and Slavery Task Force, October 2007, pg. 9,  
          http://safestate.org/documents/HT_Final_Report_ADA.pdf.)

          DO THE TRAINING REQUIREMENTS OF AB 22 AND SB 180 ADEQUATELY  
          ADDRESS THE NEED FOR LAW ENFORCEMENT TRAINING WITH RESPECT TO  
          NOTIFYING HUMAN TRAFFICKING VICTIMS OF AVAILABLE FEDERAL  
          ASSISTANCE?

          SHOULD ADDITIONAL LAW ENFORCEMENT TRAINING BE MANDATED, AS  
          SPECIFIED, WITH RESPECT TO NOTIFYING HUMAN TRAFFICKING VICTIMS OF  
          THE AVAILABILITY OF THE U VISA?



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