The transport of migrants to Martha’s Vineyard drew outrage. But is it a crime?

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In the days since two Republican governors transported groups of migrants to Martha’s Vineyard and outside Vice President Kamala Harris’s residence in Washington, D.C., to protest Democratic immigration policies, the outrage over the use of human beings as political props has prompted calls for investigations into whether the stunts may have broken any laws.

“As someone who has been on the ground, who represents these communities who has spent time speaking with and learning from these migrants,” Massachusetts state Sen. Julian Andre Cyr, who represents Martha’s Vineyard, told Yahoo News on Friday. “I think an investigation certainly is warranted.”

On Monday in Texas, Bexar County Sheriff Javier Salazar announced that his office is investigating "individual(s) who lured 48 migrants from the Migrant Resource Center in San Antonio," to be flown to Martha's Vineyard.

Cyr and other lawmakers have questioned whether potential crimes of human trafficking and kidnapping were committed. Although those charges seem unlikely, federal authorities — or the migrants themselves — could explore other possible violations, experts told Yahoo News.

A group of migrants from Venezuela on Martha's Vineyard
A group of migrants from Venezuela gather on Martha's Vineyard, Sept. 15. (Jonathan Wiggs/Boston Globe via Getty Images)

Florida Gov. Ron DeSantis, who claimed credit for chartering two flights that delivered about 50 migrants on the affluent Massachusetts Island, said the move was necessary to “protect the state of Florida from the impact of Biden’s border policies. But it has since been reported that the flights originated in Texas, which is led by Gov. Greg Abbott, and that the migrants — mostly Venezuelan asylum seekers who had recently crossed the Mexican border — hadn’t spent any time in Florida except for a short layover en route to Martha’s Vineyard.

A number of the migrants have given interviews suggesting they were lured onto the planes under false pretenses by a recruiter who offered to take them to Boston, where they were promised expedited work papers, housing and other assistance. Instead, they were reportedly dropped off at the Martha’s Vineyard Airport with no notice given to the residents.

At a video press conference Monday, Salazar said that based on his office's understanding of the incident, a Venezuelan migrant was paid to recruit migrants in the San Antonio area.

"We are opening up a case, an investigation, with regard to the suspected activities involving the 48 migrants from Venezuela," Salazar said, "that as we understand it at this point, are that on Wednesday, Sept. 14, here in Bexar County in the city of San Antonio, our understanding is that a Venezuelan migrant was paid what we would call a bird dog fee to recruit approximately 50 migrants from the area around a migrant resource center [in San Antonio]."

The City of San Antonio Migrant Resource Center, where two planeloads of mostly Venezuelan migrants sent via Florida to Martha’s Vineyard in Massachusetts had originated, is seen in San Antonio, Texas, U.S. September 16, 2022.  REUTERS/Jordan Vonderhaar
The City of San Antonio Migrant Resource Center, where two planeloads of mostly Venezuelan migrants sent via Florida to Martha’s Vineyard in Massachusetts had originated, is seen in San Antonio, Texas, U.S. September 16, 2022. REUTERS/Jordan Vonderhaar

Salazar said that the "48 migrants were lured under false pretenses into staying at a hotel for a couple of days. They were shuttled to an airplane where they were flown to Florida and then eventually flown to Martha's Vineyard again under false pretenses."

Salazar said the migrants were promised work and "the solution to their problems. They were taken to Martha's Vineyard from what we can gather, for little more than a photo op, video op, and then they were unceremoniously stranded in Martha's Vineyard."

In a statement, a spokesperson for Abbott said his office was not involved in the initial plans to take migrants to Martha’s Vineyard, but that they “appreciate the support in responding to this national crisis and helping Texans. Governor Abbott encourages and welcomes all his fellow governors to engage in this effort to secure the border and focus on the failing and illegal efforts of the Biden-Harris Administration to continue these reckless open border policies.”

Texas Gov. Gregg Abbott
Texas Governor Gregg Abbott. (Marco Bello/Reuters)

In a letter sent to Attorney General Merrick Garland last week, California Gov. Gavin Newsom, a Democrat, urged the Department of Justice to investigate whether the Martha’s Vineyard incident involved possible criminal or civil violations of federal law.

Newsom suggested that such “alleged fraudulent inducement” could constitute kidnapping. He also implored the DOJ to probe whether the migrants’ rights to equal protection under the law were violated, writing that “based on the allegations, the recruiters targeted the individuals based on their national origin,” with the apparent intent to “humiliate and dehumanize them.

Activists like Domingo Garcia, president of the League of United Latin American Citizens, echoed Newsom’s demand for accountability at a press conference on Martha’s Vineyard on Friday, calling the state-sponsored flights a “gross abuse of power,” and urged the Justice Department to probe possible violations of human trafficking or civil rights laws.

Cyr told Yahoo News that one of the migrants he spoke with on Martha’s Vineyard said “she felt like she had been kidnapped.”

“From what I've heard and others have heard, there is clearly [a] misleading of individuals,” he said. “This appears to be human trafficking in some form or at least coercion of individuals and providing transport without knowledge of their destination.”

A group of migrants who had been dropped off near the residence of Vice President Kamala Harris
A group of Venezuelan migrants, mainly from Venezuela, who were sent by bus from detention in Texas and then dropped off outside the the official residence of Vice President Kamala Harris, Sept. 17. (Marat Sadana/Reuters)

By Sunday, state officials in Massachusetts had reportedly joined the call for a Justice Department probe. “We are requesting that the Department of Justice open an investigation to hold DeSantis and others accountable for these inhumane acts,” state Rep. Dylan Fernandes, a Democrat, tweeted. Fernandes said he had spoken with Rachael Rollins, a U.S. Attorney for Massachusetts, and was "grateful to hear she is pushing for a response from the DOJ."

A Justice Department spokesperson declined to comment on the matter.

Carl Bornstein, a former federal prosecutor, told Yahoo News on Friday that he thinks it’s “unlikely that a federal prosecutor would try to use the kidnapping statute with regard to the transportation of the migrants” based on what’s been reported, though he acknowledged that that might change as more information comes to light.

Bornstein explained that the federal kidnapping statute applies primarily to situations in which someone uses or threatens physical force to get custody of another person “for the purpose of collecting a ransom or reward.” However, he said, the one exception to that involves “inveigling” or using deception or “sweet talking” to take custody of a victim.

“There is no suggestion so far that the migrants were taken by force or threat,” Bornstein said, adding that it’s not totally clear whether whatever the migrants were promised in order to get them on the planes would constitute inveigling.

“Here it seems to have been more of a con job,” Bornstein said.

Martha's Vineyard, MA - September 16: Volunteers gather in a circle before helping Venezuelan migrants board busses outside of St. Andrew's Parish House. Two planes of migrants from Venezuela arrived suddenly two days prior causing the local community to mobilize and create a makeshift shelter at the church. (Photo by Carlin Stiehl for The Boston Globe via Getty Images)
Volunteers gather in a circle on Sept. 16, 2022, before helping Venezuelan migrants board busses outside of St. Andrew's Parish House. Two planes of migrants from Venezuela arrived suddenly two days prior causing the local community to mobilize and create a makeshift shelter at the church. (Carlin Stiehl for The Boston Globe via Getty Images)

Speaking to Politico, Stephen Block, a Chicago attorney and former assistant U.S. attorney, held a similar view regarding accusations of human trafficking.

"So far, nothing indicates they’re being held captive," Block said. “They’re not being handcuffed and put on buses. So it’s unlikely that federal criminal trafficking statutes will come into play.”

Catherine Chen, CEO of Polaris, a nonprofit that works to combat sex and labor trafficking in North America, cautioned against dismissing human trafficking accusations without all of the facts.

“Human trafficking is the use of force, fraud or coercion to exploit other people for financial or personal gain,” Chen explained in a statement Friday to Yahoo News. “Despite popular misconception, trafficking has nothing to do with transportation.”

She added, “Without an investigation of exactly what happened before migrants were put on a plane and unwittingly used for political gain, it would be irresponsible to accuse anyone of trafficking. In the context of the events involving migrants transported from Texas and Florida to Martha’s Vineyard and Washington, D.C., Polaris is deeply concerned about reports of fraud.”

Florida Gov. Ron DeSantis
Florida Gov. Ron DeSantis at a campaign stop in August. (Paul Hennessy/SOPA Images/LightRocket via Getty Images)

Bornstein suggested that there may be another potential avenue for prosecution under federal immigration laws, which make it a crime to knowingly transport migrants who are in the country illegally, and would “require state officials to be deputized to do the work of federal employees when it comes to transporting migrants interstate.” But again, he said, more investigation would be needed to determine which laws would apply in this scenario.

Although many are asking federal authorities to investigate what happened on Martha’s Vineyard, Downing said there may be options for the migrants themselves to seek relief for their treatment under international law.

“People forget that these people who are coming to our country, they’re citizens of other countries, so they have rights,” Katalin Downing, an adjunct lecturer of political science at the John Jay College of Criminal Justice in New York, told Yahoo News. “It’s not just that because you cross a border you’ve lost your rights.”

While it is up to governments to bring cases, at times on behalf of their citizens, against other governments at the International Court of Justice in the Hague, Downing noted that the Inter-American Commission on Human Rights allows individuals to bring human rights complaints against any member of the Organization of American States. Although the United States has not ratified the convention that established the IACHR, meaning it is not officially a state party, it has been brought before the court in the past.

Downing also pointed out that everyone has the right to seek asylum from persecution, and there are additional protections for asylum seekers under international law. Federal law allows anyone to request asylum in the United States once they’re physically in the country, regardless of how they got here.

Migrants outside St. Andrew's Parrish House on Martha's Vineyard
Migrants outside St. Andrew's Parrish House on Martha's Vineyard after a lunch sponsored by the community. (Jonathan Wiggs/Boston Globe via Getty Images)

“Oftentimes people who are the most vulnerable are also the ones who experience serious violations of their human rights,” Downing said. “The question really is how do we ensure that people who are most vulnerable also have their rights as protected as others?”

The Martha’s Vineyard incident was the latest escalation of a months-long campaign by Republican governors in southern border states to send recently arrived migrants, mostly asylum seekers, from those states to Democratic cities in the northeast to protest Biden’s immigration policies. According to Abbott’s office, more than 7,000 migrants have been dropped off in Washington, and more than 2,000 have been sent to New York City, since April.

More buses arrived in New York from Texas on Sunday, Politico reported, and Adams said that his office is looking into whether to take legal action.

“Our legal team is looking at what legal challenges we could do with Texas. ... We believe there are some options we have, because when you involuntarily place someone on a bus, we believe that actually skates the law,” Adams told CBS New York.