Transportation of Migrants Facilitated by States

Transportation of Migrants Facilitated by States

INSIGHTi

Transportation of Migrants Facilitated by
States
October 20, 2022
On September 15, 2022, two planes landed at the airport in Martha’s Vineyard, MA, with approximately
50 non-U.S. nationals (aliens, as the term is used in the Immigration and Nationality Act [INA]) who had
been released from Department of Homeland Security (DHS) custody. DHS placed the individuals into
immigration removal proceedings, but released them from physical custody pending scheduled
immigration court hearings, where those individuals may seek asylum. After release, the migrants were
flown from Texas to Massachusetts, reportedly at the State of Florida’s expense.
Since April, Texas has been using state funds to finance bus travel for released aliens in Texas to areas
such as the District of Columbia, New York, and Chicago. The State of Arizona has also funded the travel
of aliens from that state to Washington, DC. As of mid-September, more than 13,000 aliens had been
transported out of Texas and Arizona.
Certain aliens are required by law to be detained during removal proceedings. However, DHS has the
discretion to release others, including many apprehended at the border, while their proceedings are
pending. Nondetained aliens may receive assistance from nonprofit organizations and local governments
(some of which is financed through the Federal Emergency Management Agency) for necessities such as
shelter and food, and sometimes for transportation. This assistance can aid in dispersing large groups of
migrants away from the border.
The transportation of aliens from the border to other parts of the country is not a new occurrence. The
federal government relocates aliens between DHS facilities for processing, and has also bused
nondetained aliens to other U.S. regions. The recent transportation arranged by states, however, may raise
several questions under federal law. This Insight examines two legal questions with respect to states’
recent actions—whether they raise federalism concerns, and whether certain federal criminal statutes may
apply. Although not addressed in this Insight, some have claimed that state transportation of aliens may
violate state laws. In addition, at least one lawsuit has been filed against the State of Florida and Florida
officials by some affected individuals raising federal civil rights claims, among other things.
Congressional Research Service
https://crsreports.congress.gov
IN12034
CRS INSIGHT
Prepared for Members and
Committees of Congress

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Federalism
The transportation of aliens, arranged by states, from Southwest border states further into the country’s
interior may raise questions over whether such action intrudes upon the federal government’s authority to
regulate immigration. The U.S. Constitution establishes a system of shared authority between the federal
and state governments, while declaring under the Supremacy Clause that federal law is “the supreme Law
of the Land.” When Congress exercises its enumerated powers, it may preclude, or preempt, certain state
laws and policies. The Supreme Court has repeatedly recognized that federal law preempts a broad range
of state or local activities addressing immigration-related matters, though not every single state enactment
“which in any way deals with aliens is a regulation of immigration and thus per se preempted.” For
example, the Supreme Court held that federal immigration laws did not preempt a state from suspending
or revoking the business license of an entity that employed aliens who the federal government had not
authorized to work in the United States.
State laws or activities can be preempted either impliedly or through explicit preemptive language. There
are two types of implied preemption. Under field preemption, a state cannot regulate in a field over which
Congress has exclusive authority. Conflict preemption occurs when it is impossible to comply with both
federal and state regulations or in cases where the “challenged state law ‘stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.’” In the context of state
transportation of aliens from the Southwest border, it appears that the aliens were released from DHS
custody pending removal proceedings in compliance with federal law (e.g., parole). If a state were to
interfere with the free movement of aliens authorized to be present by the United States (e.g., requiring
aliens to board a bus to leave a state), a reviewing court would likely conclude those actions intrude upon
the federal government’s immigration authority or serve as an obstacle to the execution of federal
immigration laws. In contrast, if an alien voluntarily chooses to travel to a certain region with assistance
by a state, it seems much less likely that such assistance would raise the same legal concerns absent
extenuating circumstances.
Federal Criminal Laws
Some commentators have questioned whether the state-arranged transportation of aliens through alleged
deceptive tactics may violate federal criminal laws prohibiting human trafficking, transporting unlawfully
present aliens, and kidnapping. Federal human trafficking statutes are likely not relevant because they
generally require the transportation to be against the individual’s will for the purpose of forced labor (e.g.,
certain sex acts or domestic labor). Nor does it appear likely the statute prohibiting transportation of
unlawfully present aliens is pertinent. The statute requires a person—knowing or in reckless disregard of
the fact that an alien “has come to, entered, or remains in the United States in violation of law”—to have
knowingly transported the alien for the purpose of helping him or her further such violation of law. First,
the involved aliens would likely not be considered in violation of law for purposes of this statute, as they
were released from DHS custody and authorized to remain pending removal proceedings. Second,
transportation of aliens under the statute must be in furtherance of their violation of law, which appears
unlikely here.
At least one commentator has asserted that the federal kidnapping statute could also apply in these
circumstances. The statute applies to those who “unlawfully seize[], confine[], inveigle[], decoy[],
kidnap[], abduct[], or carr[y] away and hold[] for ransom or reward or otherwise any person.” One of the
statutory bases, “inveigling,” generally means “luring” or “enticing” through deceit. As such, if it were
the case that particular aliens were induced to be transported through false representations as alleged, such
conduct could potentially fall within the meaning of inveigling, although the other elements of the statute,
including the requisite intent, would still have to be proved.

Congressional Research Service
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Author Information

Kelsey Y. Santamaria
Audrey Singer
Legislative Attorney
Specialist in Immigration Policy

Disclaimer
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