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What could be the legal ramifications of governors sending migrants to other states

MICHEL MARTIN, HOST:

We're going to start with a look at what's been unfolding as the governor of Texas, now joined by the governor of Florida, have been transporting would-be migrants to what they consider liberal strongholds. Both governors, conservative Republicans, say they want these states to experience what their residents do by receiving would-be migrants and asylum-seekers with little notice or preparation.

Right now, we want to focus on a group that was flown to Martha's Vineyard, an island off Cape Cod in Massachusetts known as a popular vacation spot. As authorities in Massachusetts move the migrants to Joint Base Cape Cod, where 125 National Guard members will be stationed, many have expressed outrage at what they call a cruel stunt. But we're wondering if there is a legal basis for this.

So we called Denise Gilman, co-director of the Immigration Clinic at the University of Texas School of Law. Denise Gilman, welcome. Thank you for joining us.

DENISE GILMAN: Thank you for having me.

MARTIN: Simply put, are states allowed to do this? Congressman Joaquin Castro, whose district includes over half of San Antonio, where the migrants were flown from, tweeted that the Department of Justice needs to investigate Governor DeSantis for using fraud and deception to lure people out of state only to abandon them without fulfilling his false promise. Same for Greg Abbott. He went on to suggest that this could be considered trafficking. Is there any merit to this?

GILMAN: I think there are very valid concerns about what exactly the legal construct here is. I think raising trafficking is valid. Trafficking is moving somebody without their authority, without their consent, for gain. And here I think you're basically talking about political gain. In some ways, I'm not even sure that's the very best way to think about this because that could be private individuals that are engaging in trafficking. And here, you're really talking about government action. Both governors have been very clear that they're doing this under state authority, using public funding. And so when that happens, I really think it's almost better to think about it as a question of the government taking somebody into custody without their authority and without any proper justification - probable cause for a criminal offense or the like - and then moving them.

MARTIN: What if, upon further review, people did consent? Even if the terms were somewhat vague, even if they did consent, saying, you know what, wherever I'm going is better than where I am now, does that change the calculus?

GILMAN: I think if there is true informed consent, the calculus is different. I still think we have some significant due process concerns about what is happening, some sort of misrepresentations that are problematic as to what exactly the situation will be for migrants that cause problems. But I don't think you have the same level of concern regarding deprivation of liberty by the government without proper authorization, as you do if there is not consent.

MARTIN: So the flights originated in Texas, and it's a bit unclear of whether the folks we're talking about here who went to Martha's Vineyard - it's unclear whether they even set foot in Florida. So it suggests a coordinated effort. In that case, who would be responsible or accountable for this, depending on your point of view? Does this - and part of the reason I ask is, does that not sort of suggest some federal issue here because you're talking about people crossing state lines?

GILMAN: So there are a couple of considerations as well, given the multistate nature of this particular action. There are provisions, constitutional provisions that have to do with transiting across state lines and that would suggest that it could be problematic for states to force people out of their states and to other states, and that could be implicated as well. But in terms of sort of who is on the hook in terms of possible constitutional violations of the civil rights of migrants, in this instance, in the Martha's Vineyard instance, it's really the state of Florida that took people into custody and transported them, quite likely without their authorization, without meaningful consent. And therefore, I would put the state of Florida on the hook for this one.

MARTIN: In NPR's reporting, migrants were told they were going to Boston, where they would be able to get a job and other necessities. California's governor, Gavin Newsom, says these migrants were transported under false pretense.

GILMAN: Absolutely, and I think it's a key issue. This is a point that we've been making. In those cases where there is true consent, there are a number of other moral and political issues, but the legal issues are less significant. But here, where it does appear that there is a lack of consent, in other words, government authorities essentially coerced people into taking these buses, and therefore, government authorities essentially took people into government custody without any consent and also without any authorization. You do get into serious issues of whether this is essentially a false arrest or even kidnapping that would be problematic under the law, certainly under civil rights provisions.

MARTIN: Rachel Self, a Boston attorney who specializes in immigration law, said in remarks that were posted on social media that the migrants were instructed to change their addresses with immigration authorities when they relocated. Can you tell us, why does this matter?

GILMAN: Well, it's a very significant issue because all of these migrants, these families, children, parents who are seeking protection in the United States, have already been processed by immigration authorities at the border. Most of them are asylum-seekers. They're seeking that protection under the law, so they have ongoing immigration proceedings in their cases. But all of the paperwork that would have been filled out by the immigration authorities would have an address that is nothing like the one that they now have, now that they've been transported to an area that is not at all where they intended to go. And unfortunately, it's not so easy to make an address change either.

And so it is quite likely that they will not receive notice of their hearings or any updates in relation to their immigration cases. And if they do want to pursue their immigration cases in a new location very different from where they intended to go, they'll have to file motions with the immigration court. This is not something that is automatic or that is easy to do, especially without a lawyer. And so we fear that there will be very significant due process violations for many of these asylum-seekers.

MARTIN: Where does this go from here? What is the next step here?

GILMAN: So, I mean, legally, the facts are still not completely clear, so there will need to be further investigation. But I expect that there will be legal challenges to both the bussing that Arizona and Texas have engaged in as well as this latest effort by the governor of Florida. I also expect that the Department of Justice may be looking at this because there are civil rights implications that the Department of Justice can be considering as well as preemption concerns because the law is clear that it is the federal government that should be engaged in immigration enforcement, immigration processing. And here you're seeing state actors getting involved in very complicated ways in this process.

MARTIN: That's Denise Gilman, co-director of the Immigration Clinic at the University of Texas School of Law. Denise Gilman, thanks so much for joining us.

GILMAN: Thank you very much. Transcript provided by NPR, Copyright NPR.

Michel Martin is the weekend host of All Things Considered, where she draws on her deep reporting and interviewing experience to dig in to the week's news. Outside the studio, she has also hosted "Michel Martin: Going There," an ambitious live event series in collaboration with Member Stations.