Attorneys lay out legal options for Martha's Vineyard migrants, including a visa for crime victims
For the past two weeks, attorneys have huddled in the cafeteria of Joint Base Cape Cod, trying to figure out the legal options for the 50 or so migrants flown from Texas to Martha’s Vineyard by order of Florida Gov. Ron DeSantis. They’re arguing that the people — who are mostly from Venezuela — might be entitled to a type of visa reserved for victims of a crime.
Applying for a U-visa could be one of the legal options for the migrants, according to several attorneys, because they were led to the remote island off Cape Cod under false pretenses by people working for DeSantis.
“Our allegation is that these individuals were kidnapped and that there's a certain argument that they're also victims of a RICO — racketeering influence and corruption conspiracy,” said Susan Church, one of the attorneys representing the immigrants pro bono.
Immigration lawyer Julio Henríquez said he found “utter confusion” among the travelers when he got to Martha’s Vineyard. “They didn’t understand how they ended up there and why.”
Migrants said they were promised jobs, free housing for three months, and were told an “anonymous benefactor” wanted to help them, along with foundations and churches that wanted to remain anonymous. They were given McDonald’s gift certificates and hotel lodging in Texas before the flights left, but then planes didn't take them where they were initially told — places like New York, Oregon, Washington, D.C., and Missouri.
The people who arrived on the Vineyard had “a very clear promise that they would get all these things if they agreed to go with them on this flight,” said Henríquez.
DeSantis also hired bus drivers to take them to a shelter on Martha’s Vineyard once they landed.
‘“The bus drivers told them, 'Get off the bus and walk in that direction. You see that parking lot over there? They're going to take you in there.' So they started walking," Henríquez said. That parking lot belonged to the YMCA on Martha’s Vineyard, and no one there knew who the migrants were or was expecting them.
Some attorneys are calling the situation “human trafficking” and “kidnapping” — words that carry legal weight in the immigration system. In this situation, the circumstances under which the migrants were brought to Massachusetts may be the very thing that helps them remain in the U.S.
The U-visa is a legal immigration status for noncitizens who have suffered substantial mental or physical abuse because of a specific criminal activity, or those who have information about a criminal activity. They have to be helpful to any law enforcement or officials investigating a crime.
“If you're suffering from continued post-traumatic stress disorder, from being victimized, or you are suffering from the result of the crime that was imposed upon you, that's the second prong of the U-Visa," said Rachel Self, an attorney representing five of the immigrants.
Lawyers for Civil Rights and immigration attorneys asked Attorney General Maura Healey and U.S. Attorney Rachael Rollins last week to open a criminal investigation into DeSantis’ actions. This could pose an opportunity for migrants to cooperate and qualify for a U-visa, and would strengthen the case that DeSantis’ actions were in fact, illegal. Healey's office is reviewing information related to the situation and is in touch with federal and state partners, according to a spokeswoman. Rollins' office didn't provide comment.
“The purpose of the U-visa is to encourage cooperation with law enforcement officials, because otherwise, immigrants are often too afraid to come out of the shadows to discuss crimes against them or other people with law enforcement,” said Church. “So this would absolutely be a great fit for a U-visa.”
Henríquez is preparing affidavits for the five immigrants he’s representing in the event Rollins and Healey pursue a criminal investigation.
Law enforcement would need to sign a form certifying that the person was a victim of a crime and cooperated in the investigation of that crime, and submit the form to the U.S. Citizenship and Immigration Services, which makes the final determination.
Church said DeSantis happened to have sent the migrants to the jurisdiction of the First Circuit Court of Appeals, which has held in one of her cases that if someone has a U-visa application pending, they can’t be deported until that application is resolved.
When many of the migrants first arrived in Texas, they presented themselves to Customs and Border Protection for asylum, were briefly detained, and paroled out, which means they have to check-in later with U.S. Immigration and Customs Enforcement. Their immigration status is pending, and they can legally remain in the U.S. during this time — but many had ICE check-ins scheduled at offices around the country.
“’The immigrants’ biggest concerns were 'I have a check-in on Monday in Utah. I have a check-in on Tuesday in Tacoma [Washington]. How am I going to get there?'" Self said.
Attorneys worked with ICE to get those dates delayed while the migrants acclimated to new surroundings at Joint Base Cape Cod.
“It was very, very, much a priority for us to get them continuances of those check-in dates so that they didn't get a removal order or any sort of black mark or negative mark on their file for not being present at a check-in,” she said. Attorneys at Lawyers for Civil Rights are also pursuing a civil suit against DeSantis, who used funds through his Department of Transportation to relocate the immigrants.
When an immigrant is approved for a U-visa, they and family members can remain in the U.S. lawfully for up to four years, with potential extensions, can get authorization to work, and can later try to become permanent residents by applying for a green card.
Despite the battle plan, attorneys say that it isn't right to say what happened to the migrants will benefit them. Church said they're traumatized and distrusting of authorities.
“It really was not a good start to their entrance into the United States, but their [DeSantis'] plan will backfire in the sense that not only are we certainly going to aggressively pursue U-visas for all these individuals, we also found them most of them have obtained free legal assistance," she said.
The downside of a U-visa is the long wait for approval, and the application doesn’t come with automatic work authorization. Attorneys may also pursue asylum claims for clients at the same time as the U-visa applicant, which comes with much faster work authorization.
“Many of them are afraid to return to their country,” said Henríquez. Establishing credible fear is one of the tenets of a solid asylum case.
The situation struck a particular nerve for Henríquez — he immigrated to the U.S. from Venezuela in 2006.
“It's personal. It's my community. The pain that I feel to see my people being treated as pawns in a political stunt. it's enraging. There’s way I cannot just sit by and watch if I have the opportunity to help,” he said.