DeSantis’ migrant flights face complex legal challenges
(The Hill) — The incendiary issue of the transportation of migrants has flared once again — and it’s not going anywhere.
The latest spark came when Florida Gov. Ron DeSantis (R) organized two flights of migrants to Martha’s Vineyard in Massachusetts on Sep. 14.
Beyond the fact that around 50 people, many of them originally from Venezuela, were transported to the island, little else is agreed upon.
DeSantis has stood by the move and is getting significant support from Republicans and conservatives.
But the flights have elicited uproar on the left and among immigration advocates. Some of the migrants have filed a class-action suit against DeSantis, other Democratic politicians have implied he has committed crimes and even a Texas sheriff has gotten involved.
DeSantis appears adamant that there will be more flights.
Here are the main legal issues:
The migrants’ class-action suit
The class-action suit filed on Tuesday is the most dramatic and concrete legal development to date.
The suit was filed in federal court in Massachusetts. It takes aim at DeSantis, Florida Secretary of Transportation Jared Perdue and the state of Florida.
The core of the case is the allegation that the migrants were coaxed onto the flights under false promises — “fraudulent inducement” in legal terms — and that this means DeSantis and his allies infringed upon those migrants’ rights and committed fraud.
It asserts that migrants were approached outside a shelter in San Antonio by mysterious people who won their trust by supplying them with minimal benefits such as McDonald’s vouchers.
In one instance, it is alleged, “several dozen people” were asked to sign a document in order to receive a $10 McDonald’s gift card.
The document, according to the legal filing, “was not completely translated to Spanish: an entire paragraph about liability and transport was not translated at all, and language specifying that the journey would take place from Texas to Massachusetts was not translated at all either.”
The plaintiffs also allege they were given brochures bearing the title “Massachusetts Refugee Benefits” and promising wide-ranging help with housing, clothes and transportation for job interviews.
In fact, the brochure had been put together by Florida officials, the suit alleges. Massachusetts’s real refugee resettlement plan, the filing notes, has “highly specific requirements for which no members of the putative class are eligible.”
The class-action lawsuit, brought in conjunction with Alianza Americas, a network of migrant-led organizations, outlines 12 different “causes for action,” including violations of the Fourth Amendment and Fourteenth Amendment, and the intentional infliction of emotional distress.
One of the lawyers representing the migrants, Oren Sellstrom, told The Hill, “Our complaint alleges a number of violations of both the U.S. Constitution and federal laws. A state governor just cannot fraudulently induce vulnerable individuals to board a plane and cross state lines.”
Sellstrom, the litigation director at Lawyers for Civil Rights, described the alleged conduct as shocking.
“You describe it and then almost have to step back and realize that it actually happened, it was actually orchestrated by an American governor,” he said.
DeSantis’s team counters that the migrants took the flights voluntarily — an assertion that, if proved true, would negate most, if not all, of the lawsuit’s claims.
Taryn Feske, DeSantis’s communications director, said in a statement that the relocations were done on a “voluntary basis.”
DeSantis’s office also provided a copy of consent forms to reporters, which list “Massachusetts” as the final destination and which they say the migrants signed.
“The immigrants were homeless, hungry and abandoned — and these activists didn’t care about them then,” said Feske. “Florida’s program gave them a fresh start in a sanctuary state and these individuals opted to take advantage of chartered flights to Massachusetts.”
DeSantis himself told Sean Hannity of Fox News on Monday, “It was clearly voluntary and all the other nonsense you’re hearing is just not true.”
The Democrats’ accusations of possible criminality
Alongside the civil suit, Democratic politicians have called on the Department of Justice (DOJ) to investigate whether crimes might have been committed by the Florida governor or people working on his behalf.
The most prominent figure to make such as call is California Gov. Gavin Newsom (D), who has tangled repeatedly with DeSantis in recent months.
Each man is considered a possible 2024 presidential contender.
Last week, Newsom penned a public letter to Attorney General Merrick Garland.
He encouraged Garland to investigate whether the alleged fraudulent inducements offered to the migrants “would support charges of kidnapping under relevant state laws” — something that could, in turn, “serve as a predicate offense” for charges under so-called RICO statutes, which were originally drawn up to fight organized crime.
A Democratic state representative in Massachusetts, Dylan Fernandes, has called for an investigation along similar lines.
He tweeted on Sept. 18 that the DOJ should investigate “legal implications around fraud, kidnapping, deprivation of liberty, and human trafficking.”
Of course, if the DeSantis defense that the migrants took the flights voluntarily carries the day, allegations of kidnapping would go nowhere.
Even those sympathetic to the migrants’ plight see steep challenges for a criminal prosecution.
It seems questionable whether the DOJ would bring criminal charges against a sitting governor — and potential presidential candidate — on a matter as loaded and polarizing as immigration unless the evidence of illegality was absolutely clear-cut.
“The FBI and DOJ probably have to look into this. They almost have no choice,” said Jesse Bless, an attorney specializing in immigration matters.
Referring to the alleged conduct by state officials, Bless said, “Certainly you couldn’t do this to a U.S. citizen — and people in the U.S., regardless of [immigration] status, do have civil rights protections.”
Yet, at the same time, Bless acknowledged, “I don’t know what the remedy would be.”
“Does DeSantis go to jail?” he added, making clear he sees such an end result as improbable.
The sheriff’s investigation
Among the curious elements of the Martha’s Vineyard episode, one stands out: The sequence of events originated in Texas, not Florida.
Many of the migrants claim that their first point of contact occurred outside or near the shelter in San Antonio. There, they say they were contacted by unidentified people — one woman gave her name as “Perla” — who set in motion the process by which they eventually ended up in Massachusetts.
Their flights, in fact, first left Texas before touching down in Florida en route to Massachusetts.
That, in turn, has led the sheriff of Bexar County, Texas — where San Antonio is located — to launch his own investigation.
Sheriff Javier Salazar, a Democrat, has been vaguer than others in outlining exactly what he is investigating, however.
Salazar has told reporters that he believes the migrants were “lured under false pretenses,” including the promise of work. He has said they were “exploited and hoodwinked.”
But Salazar’s broad statements make it hard to evaluate where his probe goes next.
Speaking with CNN this week, he noted, with respect to DeSantis, “I have not said and nor will I say … that I’ve got the governor under investigation.”
The budgetary questions
Alongside the more dramatic accusations being flung back and forth about the legality of the migrant flights, the more prosaic issue of budgeting has also received attention.
The flights were funded from a $12 million item in the Florida budget that was passed overwhelmingly by state legislators earlier this year.
But that measure, and how it’s been interpreted, is the subject of new debate.
Firstly, as Politico and other outlets have noted, the budget legislation required that the money be used with respect to transporting “unauthorized aliens from this state.”
Democrats and migrant advocates return to the point that the migrants’ journey originated in Texas, not Florida.
They further add that people from outside the U.S. have a legal right to claim asylum and to have those claims adjudicated. In other words, they are not unauthorized aliens.
Republicans and others with a more hard-line view of immigration argue that there is no problem with the language since the migrants presented themselves at the U.S. border without the required documents to enter the country.
Separately, there is controversy around the origins of the money.
Democrats say it clearly came from the interest earned by the state on COVID-19 stimulus payments from the federal government. A Washington Post report last week said that DeSantis’s office “did not respond to multiple questions about the source of the funds or whether the $12 million in COVID aid had been used for the flights to Martha’s Vineyard.”
At a recent news conference, DeSantis proclaimed, “I’ve got 12 million to use and so we are going to use it.” His intention appears to be to continue with the migrant flights until the money is exhausted.
The migrants who have filed the class action suit assert that this amounts to the use of COVID-19 relief funds for “unauthorized purposes.”
Others, who do not go that far, have said the episode shows a loophole in the provision of those funds that other states might exploit.
Meanwhile, some Democrats in Florida are pressing the issue.
State Sen. Annette Taddeo (D), currently running for Congress in the state’s 27th District, said she asked questions about the money from the outset. In particular, she unsuccessfully sought a carve-out that would have prohibited the money from being used to move people out of Florida who were seeking asylum from left-wing groups or regimes in other nations.
Taddeo fled her native Colombia at the age of 17 after her father was kidnapped by left-wing FARC guerrillas.
Cuban Americans, many of whom fled Fidel Castro’s regime or have forebears who did so, are a famously potent constituency in South Florida.
Referring to DeSantis’s move — and the widespread speculation that he is eyeing a 2024 presidential bid — Taddeo told The Hill, “This may be popular for a national presidential primary, but not in Miami.”
Figures such as DeSantis, she contended, “are wanting the votes, but when it comes time to welcome the people who are fleeing communist and murderous regimes, they are just treating them like political pawns. That is completely unacceptable.”