DeSantis Tactic Of Sending Migrants To Martha’s Vineyard Likely Didn’t Violate Smuggling Laws, Experts Say

Topline

Florida Gov. Ron DeSantis (R) took credit Wednesday for transporting undocumented migrants who arrived to the U.S. from Venezuela to Martha’s Vineyard, Massachusetts—a move that some speculated could violate a federal statute that prohibits the transport of undocumented migrants, though legal experts suggest the law would not apply in this case.

Key Facts

A group of approximately 50 migrants arrived in Martha’s Vineyard Wednesday, which DeSantis has taken credit for, though migrants said they had been staying in San Antonio, Texas, prior to the flight and not Florida.

The migrants’ journey raised speculation on Twitter that DeSantis violated 8 U.S. Code § 1324, a federal statute that prohibits transporting or attempting to transport undocumented immigrants “knowing or in reckless disregard of the fact” that the migrant “has come to, entered, or remains in the United States in violation of law,” and the transport must be “in furtherance of such violation of law.”

American Immigration Council policy director Aaron Reichlin-Melnick said on Twitter the statute—commonly used to prosecute smugglers—would not apply in this case, however, given that the migrants were already released by the Department of Homeland Security and allowed to remain in the U.S. while their immigration proceedings are pending, and thus aren’t in the U.S. “in violation of the law.”

Legal experts similarly shot down the suggestion of illegality to PolitiFact after Texas Gov. Gregg Abbott (R) first raised the prospect of doing so in April, with attorney Carlos Moctezuma García saying he “[doesn’t] see how it would be illegal” under that statute.

According to a 2017 analysis from the National Immigration Project of the National Lawyers Guild, simply transporting a migrant isn’t enough to violate the transport provisions of 8 USC § 1324, as the government would have to prove the migrant was in the country unlawfully, the person transporting them knew that was the case and transported them anyway “in furtherance of the individual’s unlawful presence.”

That means the law would apply in cases like if a person was helping the migrant remain undetected by immigration authorities, but not if they were transporting them to their place of work or something that’s incidental to their immigration status.

What We Don’t Know

Whether transporting migrants to Martha’s Vineyard could have run afoul of any other federal or state rules. The Miami Herald notes the state program that DeSantis used to charter flights to Martha’s Vineyard only authorizes the government to “transport unauthorized aliens from this state,” for instance, which may not have been the case here given the migrants’ journey originated in Texas. It’s also only legal to transport migrants who have been released from government custody if they go along with the journey voluntarily—as to do otherwise would be kidnapping—and Massachusetts state Rep. Dylan Fernandez, who represents Martha’s Vineyard, said the migrants were lured to make the trip because they were “told they would be given housing and jobs,” which was not necessarily the case. California Gov. Gavin Newsom (D) asked the Justice Department Thursday to investigate the incident as a result, and whether it violated fraud or kidnapping laws. He also asked the DOJ to investigate whether the migrants were unlawfully discriminated against due to their national origin in violation of equal rights protections. White House Press Secretary Karine Jean-Pierre said Thursday that any questions about legal actions over the migrants’ trip would be dealt with by the Justice Department, which has not yet responded to a request for comment.

Key Background

DeSantis and Abbott have advocated in recent months for undocumented immigrants to be sent to “sanctuary cities” and Democratic-controlled areas as a protest against the influx of migrants at the border, arguing the left-leaning areas are better places to absorb them. Abbott has already sent thousands of migrants to New York, Chicago and Washington, D.C., as has Arizona Gov. Doug Ducey (R), but the transport to Martha’s Vineyard—an island with far fewer resources to absorb the migrants—marked an escalation of the strategy. The White House has slammed the GOP governors’ “political stunt” of forcing migrants into Democratic-controlled areas as a tactic to criticize the Biden Administration’s immigration strategy, with Jean-Pierre calling the Martha’s Vineyard incident “shameless,” “reckless and just plain wrong” in a press briefing Thursday. Locals and officials in Massachusetts and Martha’s Vineyard—who were not alerted to the migrants’ journey to the island before they arrived—have taken the Venezuelan migrants in and provided food and shelter, with Gov. Charlie Baker (R) saying Thursday the state would set up a temporary shelter for the arriving migrants at Joint Base Cape Cod.

Further Reading

DeSantis Claims Credit As Dozens Of Venezuelan Migrants Arrive On Martha’s Vineyard (Forbes)

Greg Abbott says he will transport immigrants arriving illegally at the border to DC. Is that legal? (PolitiFact)

Understanding the Federal Offenses of Harboring, Transporting, Smuggling, and Encouraging under 8 U.S.C. § 1324(a) (National Immigration Project)