II 

115TH CONGRESS 

1ST SESSION S. 104 

To provide for the vacating of certain convictions and expungement of certain 

arrests of victims of human trafficking. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 11, 2017 

Mrs. GILLIBRAND (for herself, Mr. PORTMAN, Mr. RUBIO, and Mr. 

BLUMENTHAL) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To provide for the vacating of certain convictions and 

expungement of certain arrests of victims of human trafficking. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Trafficking Survivors 

5 Relief Act of 2017’’. 


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1 SEC. 2. FEDERAL EXPUNGEMENT FOR VICTIMS OF TRAF2 FICKING. 

3 (a) IN GENERAL.—Chapter 237 of title 18, United 

4 States Code, is amended by adding at the end the fol5 lowing: 

6 ‘‘§ 3772. Motion to vacate; expungement; mitigating 

7 factors 

8 ‘‘(a) DEFINITIONS.—In this section— 

9 ‘‘(1) the term ‘child’ means an individual who 

10 has not attained 18 years of age; 

11 ‘‘(2) the term ‘covered offense’— 

12 ‘‘(A) means a Federal offense that is not— 

13 ‘‘(i) a violent crime; or 

14 ‘‘(ii) an offense of which a child was 

15 a victim; and 

16 ‘‘(B) includes— 

17 ‘‘(i) a conspiracy to commit an offense 

18 described in subparagraph (A)(i) of which 

19 a child was not a victim; and 

20 ‘‘(ii) a conspiracy to commit an of21 fense described in subparagraph (A)(ii) 

22 that is not a violent crime; 

23 ‘‘(3) the term ‘covered prisoner’ means an indi24 vidual who— 

25 ‘‘(A) was convicted of a noncovered offense 

26 before the date of enactment of this section; 


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1 ‘‘(B) was sentenced to a term of imprison2 ment for the noncovered offense; and 

3 ‘‘(C) is imprisoned under such term of im4 prisonment; 

5 ‘‘(4) the term ‘eligible entity’ includes— 

6 ‘‘(A) a legal aid society or legal services or7 ganization that provides indigent legal services; 

8 ‘‘(B) a nonprofit organization that provides 

9 legal services to victims of trafficking; and 

10 ‘‘(C) a public defender’s office; 

11 ‘‘(5) the terms ‘employee’ and ‘officer’ have the 

12 meanings given the terms in section 2105 of title 5; 

13 ‘‘(6) the term ‘Federal offense’ means an of14 fense that is punishable under Federal law or the 

15 laws of the District of Columbia; 

16 ‘‘(7) the term ‘noncovered offense’— 

17 ‘‘(A) means a Federal offense that is a vio18 lent crime; 

19 ‘‘(B) does not include a Federal offense 

20 that is a violent crime of which a child was a 

21 victim; and 

22 ‘‘(C) includes a conspiracy to commit an 

23 offense described in subparagraph (B); 

24 ‘‘(8) the term ‘victim of trafficking’ has the 

25 meaning given that term in section 103 of the TrafVerDate Sep 11 2014 00:40 Jan 25, 2017 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S104.IS S104

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1 ficking Victims Protection Act of 2000 (22 U.S.C. 

2 7102); and 

3 ‘‘(9) term ‘violent crime’ has the meaning given 

4 that term in section 103 of the Juvenile Justice and 

5 Delinquency Prevention Act of 1974 (42 U.S.C. 

6 5603). 

7 ‘‘(b) MOTIONS TO VACATE CONVICTIONS OR EX8 PUNGE ARRESTS.— 

9 ‘‘(1) IN GENERAL.— 

10 ‘‘(A) CONVICTIONS OF COVERED OF11 FENSES.—A person convicted of any covered of12 fense (or an eligible entity representing such a 

13 person) may move the court which imposed the 

14 sentence for the covered offense to vacate the 

15 judgment of conviction if the covered offense 

16 was committed as a direct result of the person 

17 having been a victim of trafficking. 

18 ‘‘(B) ARRESTS FOR COVERED OF19 FENSES.—A person arrested for any covered of20 fense (or an eligible entity representing such a 

21 person) may move the district court for the dis22 trict and division embracing the place where the 

23 person was arrested to expunge all records of 

24 the arrest if the conduct or alleged conduct of 

25 the person which resulted in the arrest was diVerDate Sep 11 2014 00:40 Jan 25, 2017 Jkt 069200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S104.IS S104

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1 rectly related to the person having been a vic2 tim of trafficking. 

3 ‘‘(C) ARRESTS FOR NONCOVERED OF4 FENSES.—A person arrested for any noncovered 

5 offense (or an eligible entity representing such 

6 a person) may move the district court for the 

7 district and division embracing the place where 

8 the person was arrested to expunge all records 

9 of the arrest if— 

10 ‘‘(i) the conduct or alleged conduct of 

11 the person which resulted in the arrest was 

12 directly related to the person having been 

13 a victim of trafficking; and 

14 ‘‘(ii)(I) the person is acquitted of the 

15 noncovered offense; 

16 ‘‘(II) the Government does not pursue 

17 or dismisses criminal charges against the 

18 person for the noncovered offense; or 

19 ‘‘(III)(aa) the charges against the per20 son for the noncovered offense are reduced 

21 to an offense that is a covered offense; and 

22 ‘‘(bb) the person is acquitted of the 

23 covered offense, the Government does not 

24 pursue or dismisses criminal charges 

25 against the person for the covered offense, 


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1 or any subsequent conviction of the cov2 ered offense is vacated. 

3 ‘‘(2) CONTENTS OF MOTION.—A motion de4 scribed in paragraph (1) shall— 

5 ‘‘(A) be in writing; 

6 ‘‘(B) describe any supporting evidence; 

7 ‘‘(C) state the offense; and 

8 ‘‘(D) include copies of any documents 

9 showing that the movant is entitled to relief 

10 under this section. 

11 ‘‘(3) HEARING.— 

12 ‘‘(A) MANDATORY HEARING.— 

13 ‘‘(i) MOTION IN OPPOSITION.—Not 

14 later than 30 days after the date on which 

15 a motion is filed under paragraph (1), the 

16 Government may file a motion in opposi17 tion of the motion filed under paragraph 

18 (1). 

19 ‘‘(ii) MANDATORY HEARING.—If the 

20 Government files a motion described in 

21 clause (i), not later than 15 days after the 

22 date on which the motion is filed, the court 

23 shall hold a hearing on the motion. 

24 ‘‘(B) DISCRETIONARY HEARING.—If the 

25 Government does not file a motion described in 


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1 subparagraph (A)(i), the court may hold a 

2 hearing on the motion not later than 45 days 

3 after the date on which a motion is filed under 

4 paragraph (1). 

5 ‘‘(4) FACTORS.— 

6 ‘‘(A) VACATING CONVICTIONS OF COVERED

7 OFFENSES.—The court may grant a motion 

8 under paragraph (1)(A) if, after notice to the 

9 Government and an opportunity to be heard, 

10 the court finds, by clear and convincing evi11 dence, that— 

12 ‘‘(i) the movant was convicted of a 

13 covered offense; and 

14 ‘‘(ii) the participation in the covered 

15 offense by the movant was a direct result 

16 of the movant having been a victim of traf17 ficking. 

18 ‘‘(B) EXPUNGING ARRESTS FOR COVERED

19 OFFENSES.—The court may grant a motion 

20 under paragraph (1)(B) if, after notice to the 

21 Government and an opportunity to be heard, 

22 the court finds, by clear and convincing evi23 dence, that— 

24 ‘‘(i) the movant was arrested for a 

25 covered offense; and 


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1 ‘‘(ii) the conduct or alleged conduct 

2 which resulted in the arrest was directly 

3 related to the movant having been a victim 

4 of trafficking. 

5 ‘‘(C) EXPUNGING ARRESTS FOR NON6 COVERED OFFENSES.—The court may grant a 

7 motion under paragraph (1)(C) if, after notice 

8 to the Government and an opportunity to be 

9 heard, the court finds, by clear and convincing 

10 evidence, that— 

11 ‘‘(i) the movant was arrested for a 

12 noncovered offense and the conduct or al13 leged conduct which resulted in the arrest 

14 was directly related to the movant having 

15 been a victim of trafficking; and 

16 ‘‘(ii)(I) the person is acquitted of the 

17 noncovered offense; 

18 ‘‘(II) the Government does not pursue 

19 or dismisses criminal charges against the 

20 person for the covered offense; or 

21 ‘‘(III)(aa) the charges against the per22 son for the noncovered offense are reduced 

23 to a covered offense; and 

24 ‘‘(bb) the person is acquitted of the 

25 covered offense, the Government does not 


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1 pursue or dismissed criminal charges 

2 against the person for the covered offense, 

3 or any subsequent conviction of that cov4 ered offense is vacated. 

5 ‘‘(5) SUPPORTING EVIDENCE.— 

6 ‘‘(A) REBUTTABLE PRESUMPTION.—For 

7 purposes of this section, there shall be a rebut8 table presumption that the movant is a victim 

9 of trafficking if the movant includes in the mo10 tion— 

11 ‘‘(i) a copy of an official record, cer12 tification, or eligibility letter from a Fed13 eral, State, tribal, or local proceeding, in14 cluding an approval notice or an enforce15 ment certification generated from a Fed16 eral immigration proceeding, that shows 

17 that the movant was a victim of traf18 ficking, including a victim of a trafficker 

19 charged with a violation of chapter 77; or 

20 ‘‘(ii) an affidavit or sworn testimony 

21 from a trained professional staff member 

22 of a victim services organization, an attor23 ney, a member of the clergy, or a medical 

24 or other professional from whom the mov25 ant has sought assistance in addressing 


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1 the trauma associated with being a victim 

2 of trafficking. 

3 ‘‘(B) OTHER EVIDENCE.— 

4 ‘‘(i) IN GENERAL.—For purposes of 

5 this section, in determining whether the 

6 movant is a victim of trafficking, the court 

7 may consider any other evidence the court 

8 determines is of sufficient credibility and 

9 probative value, including an affidavit or 

10 sworn testimony of the movant. 

11 ‘‘(ii) AFFIDAVIT OR SWORN TESTI12 MONY OF MOVANT SUFFICIENT EVI13 DENCE.—The affidavit or sworn testimony 

14 of the movant described in clause (i) shall 

15 be sufficient evidence to vacate a convic16 tion or expunge an arrest under this sec17 tion if the court determines that— 

18 ‘‘(I) the affidavit or sworn testi19 mony is credible; and 

20 ‘‘(II) no other evidence is readily 

21 available. 

22 ‘‘(6) CONVICTION OR ARREST OF OTHER PER23 SONS NOT REQUIRED.—It shall not be necessary 

24 that any person other than the movant be convicted 


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1 of or arrested for a covered offense before the mov2 ant may file a motion under paragraph (1). 

3 ‘‘(7) DENIAL OF MOTION.— 

4 ‘‘(A) IN GENERAL.—If the court denies a 

5 motion filed under paragraph (1), the denial 

6 shall be without prejudice. 

7 ‘‘(B) REASONS FOR DENIAL.—If the court 

8 denies a motion filed under paragraph (1), the 

9 court shall state the reasons for the denial in 

10 writing. 

11 ‘‘(C) REASONABLE TIME TO CURE DEFI12 CIENCIES IN MOTION.—If the motion was de13 nied due to a curable deficiency in the motion, 

14 the court shall allow the movant sufficient time 

15 for the movant to cure the deficiency. 

16 ‘‘(8) APPEAL.—An order granting or denying a 

17 motion under this section may be appealed in ac18 cordance with section 1291 of title 28 and section 

19 3731 of this title. 

20 ‘‘(c) VACATUR OF CONVICTIONS.— 

21 ‘‘(1) IN GENERAL.—If the court grants a mo22 tion to vacate a conviction under subsection (b), the 

23 court shall immediately vacate the conviction for 

24 cause, set aside the verdict and enter a judgment of 

25 acquittal, and enter an expungement order that diVerDate Sep 11 2014 00:40 Jan 25, 2017 Jkt 069200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S104.IS S104

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1 rects that there be expunged from all official records 

2 all references to— 

3 ‘‘(A) the arrest of the person for the cov4 ered offense; 

5 ‘‘(B) the institution of criminal pro6 ceedings against the person relating to the cov7 ered offense; and 

8 ‘‘(C) the results of the proceedings. 

9 ‘‘(2) EFFECT.—If a conviction is vacated under 

10 an order entered under paragraph (1)— 

11 ‘‘(A) the conviction shall not be regarded 

12 as a conviction under Federal law and the per13 son for whom the conviction was vacated shall 

14 be considered to have the status occupied by the 

15 person before the arrest or the institution of the 

16 criminal proceedings related to such conviction; 

17 and 

18 ‘‘(B) no alien may be removed, determined 

19 to be inadmissible, or lose any immigration ben20 efit because of such conviction, arrest, or insti21 tution of criminal proceedings. 

22 ‘‘(d) EXPUNGEMENT OF ARRESTS.— 

23 ‘‘(1) IN GENERAL.—If the court grants a mo24 tion to expunge an arrest under subsection (b), the 

25 court shall immediately enter an expungement order 


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1 that directs that there be expunged from all official 

2 records all references to— 

3 ‘‘(A) the arrest of the person for the cov4 ered offense; 

5 ‘‘(B) the institution of any criminal pro6 ceedings against the person relating to the cov7 ered offense; and 

8 ‘‘(C) the results of the proceedings, if any. 

9 ‘‘(2) EFFECT.—If an arrest is expunged under 

10 an order entered under paragraph (1)— 

11 ‘‘(A) the arrest shall not be regarded as an 

12 arrest under Federal law and the person for 

13 whom the arrest is expunged shall be consid14 ered to have the status occupied by the person 

15 before the arrest or the institution of the crimi16 nal proceedings related to such arrest, if any; 

17 and 

18 ‘‘(B) no alien may be removed, determined 

19 to be inadmissible, or lose any immigration ben20 efit because of arrest or institution of criminal 

21 proceedings, if any. 

22 ‘‘(e) MITIGATING FACTORS.— 

23 ‘‘(1) IN GENERAL.—The court which imposed 

24 sentence for a noncovered offense upon a covered 


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1 prisoner may reduce the term of imprisonment for 

2 the noncovered offense— 

3 ‘‘(A) upon motion by a covered prisoner, 

4 the Director of the Bureau of Prisons, or the 

5 court’s own motion; 

6 ‘‘(B) after notice to the Government; 

7 ‘‘(C) after considering— 

8 ‘‘(i) the factors set forth in section 

9 3553(a); 

10 ‘‘(ii) the nature and seriousness of the 

11 danger to any person; and 

12 ‘‘(iii) the community, or any crime 

13 victims; and 

14 ‘‘(D) if the court finds, by clear and con15 vincing evidence, that the covered prisoner com16 mitted the noncovered offense as a direct result 

17 of the covered prisoner having been a victim of 

18 trafficking. 

19 ‘‘(2) REBUTTABLE PRESUMPTION.—For the 

20 purposes of this subsection, there shall be a rebutta21 ble presumption that a covered prisoner is a victim 

22 of trafficking if the covered prisoner provides— 

23 ‘‘(A) a copy of an official record, certifi24 cation, or eligibility letter from a Federal, 

25 State, tribal, or local proceeding, including an 


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1 approval notice or an enforcement certification 

2 generated from a Federal immigration pro3 ceeding, that shows that the covered prisoner 

4 was a victim of trafficking, including a victim 

5 of a trafficker charged with a violation of chap6 ter 77; or 

7 ‘‘(B) an affidavit or sworn testimony from 

8 a trained professional staff member of a victim 

9 services organization, an attorney, a member of 

10 the clergy, or a medical or other professional 

11 from whom the covered prisoner has sought as12 sistance in addressing the trauma associated 

13 with being a victim of trafficking. 

14 ‘‘(3) REQUIREMENT.—Any proceeding under 

15 this subsection shall be subject to section 3771. 

16 ‘‘(4) PARTICULARIZED INQUIRY.—For any mo17 tion under paragraph (1), the Government shall con18 duct a particularized inquiry of the facts and cir19 cumstances of the original sentencing of the covered 

20 prisoner in order to assess whether a reduction in 

21 sentence would be consistent with this section. 

22 ‘‘(f) ADDITIONAL ACTIONS BY COURT.—The court 

23 may, upon granting a motion under this section take such 

24 additional action as the court determines is appropriate. 

25 ‘‘(g) CONFIDENTIALITY OF MOVANT.— 


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1 ‘‘(1) IN GENERAL.—A motion under this sec2 tion and any documents, pleadings, or orders relat3 ing to the motion shall be filed under seal. 

4 ‘‘(2) INFORMATION NOT AVAILABLE FOR PUB5 LIC INSPECTION.—No officer or employee may make 

6 any report, paper, picture, photograph, court file or 

7 other document, in the custody or possession of the 

8 officer or employee, that identifies the movant avail9 able for public inspection. 

10 ‘‘(h) APPLICABILITY.—This section shall apply to any 

11 conviction or arrest occurring before, on, or after the date 

12 of enactment of this section.’’. 

13 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

14 The table of sections of chapter 237 of title 18, United 

15 States Code, is amended by adding at the end the fol16 lowing: 

‘‘3772. Motion to vacate; expungement; mitigating factors.’’. 

Æ 


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