Bethany Gamble
On September 14, 2022, two privately charted planes, carrying approximately fifty migrants from Venezuela, touched down in Martha’s Vineyard, Massachusetts.[1] The migrants fled Venezuela due to the severe humanitarian crisis caused by political turmoil, extreme socioeconomic instability, violence, and government repression.[2] Prior to the flight, supposed good Samaritans approached the immigrants near a migrant resource center in San Antonio, Texas, promising assistance with employment, educational opportunities, housing, and immigration legal assistance if the migrants boarded a plane headed to a “sanctuary state.”[3] According to the complaint in a class-action lawsuit following this incident, the promises were completely fabricated and unlawfully and fraudulently induced migrants to board the planes in violation of their constitutional rights.[4] Florida Governor Ron DeSantis claimed responsibility for the diversion, stating “[w]e are not a sanctuary state, and we will gladly facilitate the transport of illegal immigrants to sanctuary jurisdictions.”[5] On September 20, 2022, the migrants filed a lawsuit against Governor DeSantis and other conspirators of the scheme, claiming constitutional and civil rights violations.[6]
The good Samaritans, who in reality worked to advance Governor DeSantis’s political tactics, targeted migrants by “trolling streets outside” migrant centers in Texas, pretending to offer humanitarian assistance and asking to see the migrants’ legal immigration documents.[7] The undercover officials bolstered trust by providing the migrants—who suffered chronic food insecurity and housing instability—with gift cards for food and paying for migrants to stay in hotel rooms, effectively sequestering the migrants away from actual humanitarian assistance workers.[8] The complaint further recounts that before the migrants boarded the planes, the supposed good Samaritans reassured the migrants that they would travel to Boston, Massachusetts, where they would receive permanent housing, cash assistance, assistance finding employment, educational opportunities, and assistance with their immigration cases.[9]
While on the plane, each migrant received a “shiny, red folder that included official-looking materials, including: a brochure entitled ‘Massachusetts Refugee Benefits.’”[10] The brochure’s listed benefits echoed the verbal promises, stating that “during the first 90 days after a refugee’s arrival in Massachusetts, resettlement agencies provide basic needs support including . . . assistance with housing . . . furnishings, food, and other basic necessities . . . clothing, and transportation to job interviews and job training . . . assistance in applying for Social Security cards . . . registering children for school,” as well as Refugee Cash Assistance for up to eight months.[11] The brochure lifted language from the official Massachusetts refugee resettlement program, a program designed for recently resettled refugees through a federal agreement with the United Nations High Commissioner for Refugees, though the migrants were not eligible for these services.[12] Moreover, the contents of the official-looking folder were completely manufactured by Governor DeSantis’s team without any communication with the Massachusetts Office for Refugees and Immigrants.[13] When the migrants touched down in Massachusetts, they found themselves on a remote island, only accessible by boat or plane, confused and stranded on a tarmac without food, water, housing, or any social service providers expecting them.[14]
The migrants sued Governor DeSantis and his alleged co-conspirators on several grounds, including the following constitutional claims: illegal seizure and false arrests under the Fourth and Fourteenth Amendments; procedural and substantive due process violations under the Fourteenth Amendment; equal protection violations under the Fourteenth Amendment; and violations of the Supremacy Clause under Article VI, Section 2 of the U.S. Constitution.[15] Additionally, the complaint also included claims of civil violations, including civil rights conspiracy claims; violations relating to inappropriate appropriation of funds specified for COVID-19 relief; false imprisonment; fraud and deceit; intentional infliction of emotional distress; and negligent infliction of emotional distress.[16] While all of these claims appear meritorious on the alleged facts, the focus of this blog post is on the equal protection violations.
The Fourteenth Amendment states that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”[17] The U.S. Constitution guarantees the rights to due process and equal protection for all people in the United States, including undocumented immigrants and those with pending immigration proceedings.[18] When evaluating the constitutionality of government action under an equal protection claim based on race, national origin, or alienage, the Supreme Court employs the harshest standard of review: strict scrutiny.[19] Strict scrutiny is applied to government action that infringes upon a fundamental right or discriminates based on a suspect class.[20] This standard of review requires the government to demonstrate that its action is necessary to achieve a compelling government interest, narrowly tailored to further that interest, and is the least restrictive means available to achieve that interest.[21] Courts apply strict scrutiny to equal protection claims based on race, national origin, religion, and alienage discrimination.[22]
The right to seek asylum in the United States is guaranteed by the Refugee Act of 1980.[23] The migrants involved in the lawsuit presented themselves to federal immigration officials upon arrival in the United States and were released pending review of their “active federal proceedings to adjudicate their immigration status.”[24] Immigrants with pending immigration proceedings, including asylum seekers, are allowed to remain in the United States while waiting for an adjudication of their claim, meaning that migrants were lawfully present.[25] Importantly, immigrants with pending federal immigration proceedings must update their address with immigration officials in order to receive court notifications specifying when and where the immigrants are required to appear before the immigration court.[26] If migrants do not show up for their court hearing, they are ordered removed in absentia.[27]
The Venezuelan migrants allege Governor DeSantis discriminated against them when he intentionally targeted them based on their race, alienage, and national origin.[28] Based on the migrant’s race and status as undocumented immigrants seeking asylum from Venezuela, the governor’s agents fraudulently induced the migrants to board a plane, intentionally leaving them stranded on an isolated island to serve his own stated political motives.[29] This state action intentionally stripped the migrants of their dignity and integrity and deprived them of equal protection and due process of law in violation of the Fourteenth Amendment.[30] Moreover, Governor DeSantis’s scheme targeted migrants with specific immigration statuses that required them to change their addresses with immigration officials to receive their court documents.[31] Knowing their vulnerable positions, Governor DeSantis purposefully sequestered the migrants away from actual humanitarian assistance workers, transported the migrants to a location to which they did not knowingly consent to travel, and falsely promised legal assistance.[32] These actions were intended to disrupt the migrants’ lawful asylum claims in an attempt to have them ordered removed in absentia.[33]
If the facts of this case are as they appear, such violations of equal protection and due process violations should not withstand judicial review under strict scrutiny because transparently using immigrants to promote one’s own political agenda in a state whether the migrants neither arrived nor settled does not serve a legitimate government interest.[34] Thus, Governor DeSantis and his co-conspirators should be found to have violated the constitutional rights of nearly fifty Venezuelan migrants by targeting them on the basis of race, alienage and national origin.
[1] See Edgar Sandoval et al., The Story Behind DeSantis’s Migrant Flights to Martha’s Vineyard, N.Y. Times (Oct. 4, 2022), https://www.nytimes.com/2022/10/02/us/migrants-marthas-vineyard-desantis-texas.html [https://perma.cc/SZQ3-2VCD] (summarizing migrant plane incident).
[2] See Venezuela Situation, UNHCR, https://www.unhcr.org/en-us/venezuela-emergency.html [https://perma.cc/5H85-NUJV] (discussing risks facing Venezuelans in home country).
[3] See Complaint at 14, Alianza Americas v. DeSantis, No. 1:22-cv-11550 (D. Mass. Sept. 20, 2022) (describing offers to migrants).
[4] See id. at 23-29.
[5] Ron DeSantis (@GovRonDeSantis), Twitter (Sept. 15, 2022, 12:29 PM), https://twitter.com/govrondesantis/status/1570449660019359744?lang=en [https://perma.cc/KRG8-98P3].
[6] Eduardo Medina & Remy Tumin, Migrants Who Were Flown to Martha’s Vineyard Sue Florida Governor, N.Y. Times (Sept. 20, 2022), https://www.nytimes.com/2022/09/20/us/desantis-migrants-lawsuit.html [https://perma.cc/M7QF-MPHS].
[7] See Complaint at 14, DeSantis, No. 1:22-cv-11550.
[8] See id. at 3.
[9] See Complaint at 9-10, DeSantis, No. 1:22-cv-11550.
[10] Id. at 9.
[11] Id. at 9-10.
[12] Other Benefits Available to Refugees, Mass.gov, https://www.mass.gov/service-details/other-benefits-available-to-refugees [https://perma.cc/4Y9L-NRT7] (offering services to refugees placed in Massachusetts through resettlement agencies, unlike migrants’ circumstances).
[13] See Complaint at 10, DeSantis, No. 1:22-cv-11550 (noting no interstate cooperation).
[14] See Sandoval et al., supra note 1 (describing migrants’ arrival); Complaint at 11, DeSantis, No. 1:22-cv-11550.
[15] See Complaint at 23-29, DeSantis, No. 1:22-cv-11550 (listing alleged rights violations).
[16] See id. at 29-34.
[17] See U.S. Const. amend. XIV § 1.
[18] See Plyler v. Doe, 457 U.S. 202, 202 (1982) (asserting undocumented aliens have constitutional right to equal protection and due process); Wong Wing v. United States, 163 U.S. 228, 241 (1896) (holding conviction without jury trial of Chinese immigrant violated Due Process Clause); U.S. Const. amend. XIV § 1; U.S. Const. amend. V.
[19] See Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (analyzing racial discrimination under strictest standard).
[20] See Roy G. Spece, Jr. & David Yokum, Scrutinizing Strict Scrutiny, 40 Vt. L. Rev. 285, 300 (2015).
[21] See id. at 295 (describing common interpretations of government’s strict scrutiny burden).
[22] See Bolling v. Sharpe, 347 U.S. at 499 (applying strict scrutiny to law requiring school segregation based on race); Graham v. Richardson, 403 U.S. 365, 375-76 (1971) (applying strict scrutiny in alienage-discrimination case).
[23] See generally Pub. L. No. 96-212, 94 Stat. 102 (1980).
[24] Complaint at 2, DeSantis, No. 1:22-cv-11550.
[25] See Fact Sheet: Asylum in the United States, Am. Immigration Council (June 11, 2020), https://www.americanimmigrationcouncil.org/research/asylum-united-states [https://perma.cc/J2HZ-VJMM].
[26] See Kit Johnson, Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts, 50 Colum. Hum. Rts. L. Rev. 1, 39 (2018) (emphasizing logistical necessities).
[27] See id. (noting consequences of no follow-up).
[28] See Complaint at 14, DeSantis, No. 1:22-cv-11550.
[29] See id.; Ron DeSantis (@GovRonDeSantis), Twitter (Sept. 15, 2022, 12:29 PM), https://twitter.com/govrondesantis/status/1570449660019359744?lang=en [https://perma.cc/KRG8-98P3].
[30] See U.S. Const. amend. XIV § 1; Plyler v. Doe, 457 U.S. 202, 202 (1982); Wong Wing v. United States, 163 U.S. 228, 241 (1896).
[31] See Complaint at 14, DeSantis, No. 1:22-cv-11550; Johnson, supra note 26.
[32] See Complaint at 14, DeSantis, No. 1:22-cv-11550.
[33] See supra notes 26-27 and accompanying text (describing removal consequences for not updating address and missing hearings).
[34] See Spece & Yokum, supra note 20, at 300.