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What the law says about DeSantis and Abbott sending migrants to blue states

The migrants sent to Martha’s Vineyard have said they were told they they were going to Boston for expedited work papers. And critics have said migrants were “misled," that they might not have willingly participated, and have even compared the situation to “kidnapping.”

A group of nearly 50 migrants from Venezuela who were flown to the island of Martha's Vineyard off Cape Cod, Mass., on Sept. 14 speak with volunteers at the parish house at St. Andrew's Episcopal Church in Edgartown, Mass. (Cj Gunther/EPA-EFE/REX/Shutterstock)

This post has been updated with new claims about the treatment of the migrants.

Republican Govs. Ron DeSantis of Florida and Greg Abbott of Texas are turning migrants into political pawns — quite literally — by moving them to liberal areas to try making a point about border security. DeSantis on Wednesday flew dozens of migrants to Martha’s Vineyard in Massachusetts, while Abbott on Thursday announced that he had bused yet more of them to the vice-presidential residence in Washington.

Amid claims that some of those migrants might not have participated willingly or might have been misled, critics are raising questions about the legality of these efforts, likening them to human trafficking.

But legal experts say too little is known at this point to draw any firm conclusions.

In some cases, the migrants have said they were grateful to be transported to places where they’d get more assistance, or just closer to their final destinations. But after Abbott sent other migrants to Chicago this week, Illinois Gov. J.B. Pritzker (D) on Wednesday said state and local authorities were examining whether the effort could lead to “criminal liability.” He pointedly raised the issue of whether the migrants might not have “willingly” boarded the buses, saying they appeared to have signed waivers but suggesting they might not have understood.

Chicago Mayor Lori Lightfoot (D) raised the prospect of coercion: “I believe that they have been misled, and the only option for them that they’ve been presented by the folks in Texas is a free bus ride.”

Abbott spokeswoman Renae Eze told The Washington Post the migrants were indeed willing participants: “These migrants willingly chose to go to Chicago, having signed a voluntary consent waiver available in multiple languages upon boarding that they agreed on the destination,” Eze said.

These issues have now also been raised amid DeSantis flying migrants from Texas to Martha’s Vineyard. Some said a woman identified as “Perla” told them they were headed to Boston for expedited work papers. One migrant identified as Juan Ramirez told the Miami Herald they were promised work and assistance. "When we get here we find the surprise that no one knew we were coming here,” Ramirez said.

Also on Thursday, immigration lawyer Rachel Self told reporters of the migrants, “We believe they are victims of kidnapping.” She said the migrants were told to change their addresses with the wrong agency — United States Citizenship and Immigration Services — which she labeled an “intentional attempt to ensure the migrants were removed in absentia when they failed to change their address with the proper agency.”

Very little is known at this point. But some critics have compared the situations to human trafficking or smuggling and pointed to definitions of those words and criminal statutes. One smuggling statute, 8 U.S. Code § 1324, makes it illegal if someone:

“knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law”

The last part of the statute is key; it means transporting the migrants must assist them in violating the law in some way. But the Texas program is supposed to require participants to have been processed and released by the Department of Homeland Security, meaning it’s not clear transportation would be helping them violate the law.

Bridgette Carr, a professor at the University of Michigan Law School who specializes in these issues, also said it was possible that a governor or those acting on their behalf might be insulated from potential violations.

“The issue here is whether there is any provision which gives immunity to government officials to move people who entered the country illegally,” Carr said, noting that U.S. Border Patrol, for one, is allowed to transport such migrants. She added: “However, I would be curious if that immunity extends beyond federal officials, since immigration is generally a power the feds regulate exclusively.”

Sarah Sherman-Stokes, who teaches immigration law at Boston University School of Law and is in touch with advocates on the ground in Massachusetts, said, “It’s possible that this [statute] fits.”

“I think there are some questions about whether DeSantis is acting in his capacity as an elected official or personally,” she said, calling the process of transporting the migrants “opaque.”

The bigger issue might be if it can be proven that anyone was misled or transported against their will, both experts said.

Sherman-Stokes said, if that’s the case, it would bring things “perilously close to human trafficking. But it’s not clear to me, on these facts, that it’s more like human trafficking or like smuggling.”

She noted that human trafficking requires force, fraud or coercion and for the people to have been exploited — though it’s not clear political exploitation would qualify: “Clearly, DeSantis is exploiting them for political gain, but I’m not sure that rises to the level of human trafficking.”

Carr added: “The missing link here is that the fraud needs tie to a commercial benefit for someone (i.e. DeSantis).”

But thus far, we don’t have any evidence for that beyond the migrants’ suggestions of being misled and the words of Democrats critical of the program. Illinois Attorney General Kwame Raoul’s (D) office referred questions to Pritzker’s office, which hasn’t responded to a request for further detail.

A Twitter account tied to DeSantis’s 2022 reelection campaign fought against the human trafficking rhetoric Thursday, comparing what DeSantis had done to the Biden administration flying migrants around the country. (The federal government, as noted above, is responsible for enforcing immigration law.)

DeSantis gubernatorial spokesman Jeremy Redfern also responded to criticisms that DeSantis didn’t give local officials advance warning: “Do the cartels that smuggle humans call Florida or Texas before illegal immigrants wash up on our shores or cross over the border? No,” he said on Twitter. (DeSantis’s office didn’t respond to a request for further comment Thursday afternoon.)

Sherman-Stokes said that while much remains unknown, “This very well might be legal with a capital L.” She said that doesn’t change the real point, though, which is that the tactic is “pernicious” and “horrific political theater that is playing with people’s lives.”

Carr added: “Unfortunately, I can’t think of a law that says, ‘We can criminally charge you for being a jerk to vulnerable people for your own political gain.’ I wish we did.”

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