The Veerapol Decision: Law Informed By Compassion
The catastrophic events of September 11, 2001 have caused a sea change in the way that many people regard the issue of immigration. While it would be incorrect to say that most Americans support imposing a hermetic seal around this country's borders, there is no question that 'aliens', either 'illegal' or even in some cases those lawfully present, have become the focus of heated debate and suspicion. It is unfortunate that the architects of the single greatest terror attack on these shores were immigrants, primarily because they have, implicitly, and by their status, unfairly impugned the integrity and loyalty of most non-citizens present in this country. German, Italian and Japanese-Americans of a certain generation recall similar treatment during World War II when, despite their status as long-term permanent residents or even naturalized citizens, these individuals were forced to carry special identification, and were subject to curfews and restrictions from which native-born citizens were exempt. Faced with the very real possibility that this nation will be sending troops to Iraq in the not-too-distant future, it is reasonable to assume that heightened restrictions on non-citizens will become the rule and not the exception, particularly with the recent creation of the Department of Homeland Security. It is instructive, then, to consider a recent decision issued by the Ninth Circuit Court of Appeals which reminds us that immigrants are vulnerable in these troubled times and are as much victims of circumstance as security threats.
In United States of America v. Supawan Veerapol, No. 00-50042 (December 9, 2002), the Ninth Circuit held that "threatening an immigrant with deportation could constitute the threat of legal coercion that induces involuntary servitude." In that case, the defendant, a native of Thailand and the common law wife of a Thai diplomat based in Los Angeles, induced a number of Thai nationals to immigrate to the United States to work in her restaurant in the summer of 1989. Through her diplomatic connections, the defendant was able to obtain passports and visas for the individuals, one of whom, Nobi Saeieo, was a non-English speaker with a second grade education. Ms. Saeieo was induced to enter the United States with promises of two years employment at a substantially higher wage than she could have earned in Thailand.
Upon arrival in this country, Saeieo was required to work long hours cooking, cleaning and performing such menial chores as giving the defendant pedicures and washing the defendant's nine year old son after he went to the bathroom. She was also required to wait upon the defendant s guests on one knee, and was prohibited from reading newspapers, leaving the premises, speaking with houseguests or customers at the restaurant, or contacting her family. Saeieo was prevented from using the mails, the telephone and was beaten on numerous occasions. When she complained about this treatment, she was informed that if she left or attempted to call the police, she would be arrested and deported as an illegal alien.
In 1995, Saeieo's sister inquired about her welfare with the Foreign Ministry in Thailand, which eventually contacted a Thai consular official in the United States. After a meeting with both the defendant and Saeieo, the latter was permitted to return to Thailand. On May 1, 1998, a grand jury indicted the defendant on charges of harboring aliens, and subsequent indictments charged her with the added count of involuntary servitude. Convicted on all counts, the defendant was sentenced to a 97 month term of imprisonment, fines, and was ordered to pay restitution to Saeieo.
On appeal, the defendant challenged her conviction for involuntary servitude. The Court of Appeals noted that a person commits the offense of holding another to involuntary servitude under 18 USC Section 1584 when [he] knowingly and willfully holds to involuntary servitude any other person for any term. 18 USC Section 1584. Citing the controlling case on this issue, United States v. Kozminski, 487 US 931 (1988) the Court of Appeals held that a conviction under this section requires a showing that the victim was forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use of coercion through law or the legal process. Id. at 952 (emphasis supplied). In holding that the threat of deportation did indeed satisfy the coercion prong of the equation, the Court upheld the conviction and in doing so, refused to carve out a minimum threshold of threats and coercion which would support a conviction under this section. In other words, the Court was willing to accept a more fluid definition of 'coercion' to one which set out a specific set of acts. It is interesting that, even after September 11th, a U.S. court was willing to consider an alien's fear of removal as one of the factors that satisfy the 'coercion' element.
The Court also addressed the issue of sentence enhancement. The base offense level of the defendant's sentence was upwardly adjusted by two points under U.S.S.G Section 3A1.1(b)-the vulnerable victim enhancement provision. Saeieo's immigration status was a significant factor in determining her vulnerability quotient i.e. the likelihood that she would reasonably believe she could not terminate her employment without suffering severe repercussions. The District Court made the following determination, which was incorporated into the Circuit Court opinion: The victim was basically a poor, uneducated woman, lacking in sophistication, in the knowledge of the United States laws, and I think that was also exploited..."
The Veerapol decision is important to the extent that it underscores the difficult situation in which many immigrants find themselves in this post 9/11 climate. While some, like Representative Tom Tancredo of Colorado would argue that an illegal or undocumented alien should not expect any of the protections which are provided for at common and statutory law, this case stands as an example that inhuman treatment will not be condoned, regardless of the victim's legal status. Moreover, the severe sentence meted out to the defendant serves as an example that when laws are informed by compassion, society benefits as a whole.
Christine Flowers is employed by Joseph M. Rollo and Associates, P.C. in Philadelphia, Pennsylvania. The firm provides a complete range of immigration services and specializes in family and employment-based petitions, asylum and deportation. Ms. Flowers is currently co-chair of the asylum liaison committee for the Philadelphia Chapter of the American Immigration Lawyers Association, and has written and lectured frequently on immigration in the Philadelphia area. She is a 1983 graduate of Bryn Mawr College and a 1987 graduate of Villanova Law School. The firm can be reached at firstname.lastname@example.org.
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