The undocumented migrants who were transferred to Martha’s Vineyard have quickly adopted one common American practice: litigation. A firm, Lawyers for Civil Rights, in conjunction with the migrant-led nonprofit Alianza Americas, filed the action on behalf of Yanet Doe, Pablo Doe and Jesus Doe who are using pseudonyms for the action “on behalf of themselves and all others similarly situated.” The filing is a Jackson Pollock of legal claims with twelve claims thrown against Florida from false imprisonment to intentional infliction of emotional distress to misuse of the Coronavirus State Fiscal Recovery Fund. The splattering of claims face considerable legal barriers based on the consent of the migrants, as shown in a waiver released by Florida.
The filing of a lawsuit upon entry to the United States is not unprecedented, of course. Indeed, I teach in torts where an immigrant to the United States filed a tort action for an involuntary inoculation upon entry in O’Brien v. Cunard. Yet, this is a case involving undocumented migrants who allegedly signed a waiver and agreed to the trip.
The filing does not include the widespread claims of kidnapping and human trafficking made by Democratic politicians and some legal experts. Cable programs are still claiming that criminal kidnapping charges should be brought after the flight. In the narrative or background sections, there is no such allegations and the actual civil claims do not appear based on those theories.
The claims include only three Section 1983 claims and do not include the allegation of human trafficking for sex or labor exploitation that is the basis for human trafficking.
As for kidnapping, two of the three 1983 counts involve due process or equal protection claims. One involves “unlawful seizure” because “by fraudulently inducing individual Plaintiffs to cross state lines in the manner described herein, Defendants unreasonably seized Plaintiffs without just cause.” The count states that, “particularly after the individual Plaintiffs had boarded the airplanes and were in mid-air, Plaintiffs were not free to leave, and were induced into that condition through false promises and misrepresentations.” The thrust is a temporary seizure under the Fourth Amendment.
The lawyers are alleging that the migrants were mislead or defrauded in going to Martha’s Vineyard. The flight is portrayed as “designed and executed a premeditated, fraudulent, and illegal scheme centered on exploiting this vulnerability for the sole purpose of advancing their own personal, financial and political interests.”
Gov. DeSantis responded by calling the lawsuit “political theater,” which is ironic given that the flight was clearly designed as precisely that type of political theater.
However, most of these claims are highly dubious and will require substantially more factual support to survive a threshold challenge. The first challenge will be to show that the waiver was secured by trick or fraud. The consent form – available in English and Spanish – states:
“I agree to hold the benefactor or its designed representatives harmless of all liability arising out of or in any way relating to any injuries and damages that may occur during the agreed transport to locations outside of Texas until the final destination in Massachusetts.”
The lawyers are citing a brochure to support the claim of fraud. The brochure reads “Massachusetts Refugee Benefits” with instructions for how to change an address with U.S. Citizenship and Immigration Services (USCIS), including USCIS Form AR-11, “Alien’s Change of Address Card.” The complaint states:
On information and belief, the brochure was manufactured by Defendants. The brochure echoed the type of false representation that had been given orally, including statements such as: “During the first 90 days after a refugee’s arrival in Massachusetts, 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….”
The brochure had a separate section entitled “Refugee Cash Assistance (RCA),” which stated: “Provides up to 8 months of cash assistance for income-eligible refugees without dependent children, who reside in Massachusetts.” It had other sections that described “targeted services for . . . employment.”
The state says that the brochure takes material from the state website for refugees and migrants.
The state is also likely to replay media accounts of migrants expressing satisfaction with going to the island, including an NBC report as well as a Telemundo report of migrants thanking Desantis.
The most serious allegation is that Florida officials “told them they were flying to Boston or Washington, D.C., which was completely false.” The question is the proof of that representation since the waiver refers only to the destination being “the State of Massachusetts.”
Most of the claims are barely defined, let alone supported. For example, on false imprisonment, the complaint merely restates defrauding claims:
The Plaintiffs’ participation in the federal immigration processes—to which they are constitutionally entitled—was impeded, as they were transported thousands of miles away from where they needed to continue immigration proceedings. Plaintiffs were not informed that they would be flown to an island off the coast of Massachusetts that can only be reached by plane or ferry. The first time that many of the putative class learned that their destination was Martha’s Vineyard was when they were in mid-air. When they arrived, they were not provided with any of the goods and services which they were promised by Defendants. They felt defrauded and tricked and were traumatized by the experience.
The only confinement alleged is the flight itself, which necessarily does not allow people to leave mid flight. Thousands of migrants have been transferred by flights to locations around the country, including trips arranged by the Biden Administration and a Democratic mayor.
The complaint is stronger on rhetoric than supporting facts or law. It will face a motion to dismiss and that the litigants may be able to offer more evidence of a fraud or misrepresentations to negate their signed waivers. However, this is unlikely to result in a serious threat to these ongoing flights by various states. This is a civil action that, even if it can survive threshold challenges, will be in the court system for a long time in seeking to establish these claims. Many of these claims are likely to be dismissed or abandoned in the course of that litigation.
Here is the complaint: Alianza-Americas v. DeSantis