The migrants sent by Republican Texas Gov. Greg Abbott and Republican Florida Gov. Ron DeSantis to Martha’s Vineyard last week may be victims of several crimes, including fraud and kidnapping, legal experts say.
Such charges, if successfully brought, could make the migrants eligible for a U.S. visa — an ironic twist on what is viewed by many as a political stunt by DeSantis, whose use of Florida taxpayer money to pay for a flight from Texas to Massachusetts (with a layover in Florida) is also in question.
DeSantis confirmed last Thursday in Florida that he had chartered two private flights, which together carried nearly 50 migrants — most from Venezuela and who speak little to no English. The planes, which flew from Texas to Florida, then from Florida to Massachusetts, cost a reported $615,000.
Why Massachusetts? It’s what DeSantis’ team called a “sanctuary destination” — an unofficial political term that’s being thrown around identifying places that are more welcoming to migrants.
Immediately, observers took to social media this past weekend to ask, is this legal?
Several pro bono lawyers and nonprofit organizations have offered their services to aid the migrants in what is quickly turning into a legal battle. Among the most pressing questions many of these lawyers have are how the migrants were treated and what they were promised.
And on Tuesday afternoon, Alianza Americas, a nonprofit “network of migrant-led organizations,” filed a class-action lawsuit against DeSantis, the state of Florida and other state officials on behalf of the migrants.
Grid spoke to legal experts Elizabeth Ricci, a Florida-based immigration law attorney with over 30 years of experience working with migrants seeking legal status and employment in the U.S.; Evangeline Chan, a New York-based immigration law attorney with over 15 years of experience helping noncitizens receive visas, asylum and humanitarian-based relief in the U.S.; and Sarah Dávila A., who for over a decade has litigated both foreign and domestic human rights cases, and is the director of the International Human Rights Clinic at the University of Illinois Chicago School of Law.
First up: Know your visas
“Wouldn’t it be ironic if they were legalized as a direct result of this transportation?” said Ricci — and that’s exactly what might happen. Potential fraud, kidnapping or trafficking crimes, high-ranking immigration attorneys say, could give the migrants a case to qualify for a U.S. visa, green card or even potential citizenship.
It will be more difficult — though not impossible, depending on what information is gleaned in the coming days and weeks — to charge DeSantis himself, experts say.
There are two relevant visas that these migrants might qualify for: the U visa, which is given to victims of a specific list of crimes and who have suffered mental or physical abuse — refugees from countries in civil war, for example, have received U visas; and the T visa, given to victims of human trafficking — those who have been sold into slavery or forced to work against their will are typical recipients.
Both visas would also require the person to work with law enforcement and are approved by U.S. Citizenship and Immigration Services.
“In addition to the possibility of receiving asylum, [the migrants] could also request the U or T visa, which, if approved, would see permanent residency and a green card, which leads to citizenship,” said Ricci.
Fraud and kidnapping are the charges with the strongest cases, say experts
DeSantis said at a press conference in Daytona Beach on Friday that the migrants would have “a better life” and “jobs” — neither of which were available when they arrived at Martha’s Vineyard. That may be fraud, said Ricci, which could help qualify the migrants for a U visa.
Promising jobs that are not there, said Chan, who is also the director of Safe Horizon’s immigration law project, could be a key element in proving fraud.
Perhaps the most crucial element of all, Chan added, is the on-the-ground interactions between migrants and border agents, as well as migrants and those in charge of their transport — a private aircraft charter company called Vertol Systems Company Inc.
While it’s currently unclear how the situation was explained to the migrants and what options they were given, when the following information is gathered, it will factor into lawyers’ understanding of coercion and consent:
- Which language — Spanish or English — the information was presented to the migrants
- If those with badges and/or guns were present during these interactions
- If or when they were allowed to deboard buses and planes
“We’re only starting to unpack these as the arrivals reach us,” Chan said. “These specific details will be very important in determining whether or not they satisfy any of the elements of any of these qualifying crimes.”
One piece of information that is available: The migrants allegedly signed waivers and packets agreeing to travel to Martha’s Vineyard, according to DeSantis. But “unlawful acts cannot be waived,” said Ricci.
DeSantis said at the same Friday news conference that because the “packet included a map for Martha’s Vineyard” it should have been obvious to the migrants that “that’s where they were going.”
It is quite unlikely, said Chan, that the migrants had prior knowledge of Martha’s Vineyard or would have listed it as a preferred destination.
Chan clarified that proving someone is a victim of one of the crimes listed on the U visa application is not the sole factor in receiving the visa. But the other two requirements won’t be too difficult to check off, Chan said.
The key to proving the crimes occurred: The migrants must be helpful to law enforcement in the “prosecution of criminality” and, second, prove that they were either physically or mentally abused.
Trafficking charges are possible but would be difficult to prove
Another major crime — swirling around social media and legal circles — is trafficking.
Under federal law, the definition of trafficking — a crime that is grounds for receiving a T visa and a qualifying crime for the U visa — includes “the enticement of travel for a better life or jobs,” Ricci said.
But there are two key distinctions to this qualifying crime that may be difficult to make the case for migrants who were transported to Martha’s Vineyard, at least with the information currently at hand, said Chan. There must be evidence of commercial sex trafficking or labor trafficking, both of which “will be hard to establish” for either visa, she said.
With what is currently known, commercial sex trafficking did not occur, Chan said. Labor trafficking would also be very difficult to prove. Bringing the charge would require proof of poor working conditions, working hours and pay outside of what they were promised, restricted movement, workplace surveillance, or no access to nutrition or breaks — because there were no jobs immediately available, this charge too may be moot.
DeSantis may also have to contend with international law
International human rights violations are also on the table, said Dávila A.
“DeSantis’ active misleading and deception of vulnerable migrants is exploitative at a minimum, but more seriously violates federal and international law,” Dávila A. said.
Dávila A. and the International Human Rights Clinic found the migrants’ transportation to “violate the freedom of movement articulated in the International Covenant on Civil and Political Rights, to which the U.S. is a signatory,” she said. Specifically, she said, he violated Article 12, which guarantees the migrants “the right to liberty of movement.”
The clinic also found DeSantis in violation of the United Nations Convention Against Transnational Criminal Organized Crime and its Protocols — that by deceiving and exploiting the migrants using deception, coercion and abuse of power, he trafficked vulnerable persons.
And what about DeSantis using Florida state funds to transport migrants from Texas to Massachusetts? Was that legal?
Florida’s budget allocates $12 million to “transport unauthorized aliens” out of the state — a purse DeSantis has said time and again that he would dip into for this purpose.
But there are questions surrounding the migrants’ first flight, which departed San Antonio and landed in the Florida Panhandle — seemingly the exact opposite of what Florida taxpayer money was intended for.
And this action breaches language in two companion bills — H.B. 1355 and S.B. 1808 — of which the latter became law in Florida this past June. Commonly known as the “Immigration Enforcement” bills, they hold a “common carrier” provision that prevents any local and state government agency from contracting with companies who transport “unauthorized aliens” into Florida, said Alexis Tsoukalas, a policy analyst at the Florida Policy Institute.
“As to the nuances of this specific use, I think those are questions that we don’t know yet,” Tsoukalas said. “This is kind of new territory, at least for analysts.”
What complicates the understanding of DeSantis’ spending, Tsoukalas said, is how nontransparent this $12 million budget has been. Originally $8 million, the amount was added to the official state budget after the public legislative budgeting session. “People didn’t have an opportunity to ask questions publicly, to vet it,” Tsoukalas said.
And, she said, these funds were taken from the federal fiscal relief fund, which the government had dedicated to covid-19.
The Office of Program Policy Analysis and Government Accountability, the “research arm of the Florida legislature,” declined to comment.
“How [the planes] were redirected to land in Florida is a great question for Gov. DeSantis,” Ricci said. “He had to have acted in cahoots with the governor of Texas to pull this off. I don’t see how it could have happened any other way.”
In the Friday press conference, DeSantis said that the migrants had previously “identified as wanting to go to Florida” after arriving at the U.S.-Mexico border.
He was referring to a form that migrants are given when they are apprehended at the border, Chan said, which gives them the opportunity to provide the Department of Homeland Security with an address to which they’d prefer to go.
Florida is one of the most popular destinations listed by migrants, Chan said. However, “normally they aren’t given the transportation, and they’re left on their own, and then they will go on their own,” she said.
That DeSantis paid over half a million dollars to provide transportation — private planes, at that — for the migrants to travel to Martha’s Vineyard, a well-known vacation destination, reinforces the play for optics and potential future political moves.
And yet, the law may not be on DeSantis’ side. As for the migrants, Chan said that their travel is likely not finished. After reports that they were transported further to Cape Cod, other sanctuary cities — including New York, D.C. and Chicago — may end up as their final destination.
This article has been updated. Thanks to Lillian Barkley for copy editing this article.