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Non-Citizens Bussed to Washington D.C., New York City, and Chicago
Since April 2022, Texas governor Greg Abbot has bussed non-citizens from Texas to sanctuary cities on the U.S. East Coast, including Washington D.C., New York City, and Chicago in particular. A sanctuary city is a city “that discourages local law enforcement from reporting the immigration status of individuals unless it involves investigation of a serious crime.” The governor’s action has been part of Operation Lone Star, which is a multi-billion dollar effort by the government of Texas to increase border security, prevent drug smuggling, and increase deportation and criminal enforcement against non-citizens in the state.
Governor Abbot’s stated rationale for sending these non-citizens to sanctuary cities has been to send a message to the Biden administration for the perceived failure of the federal government to secure the U.S. border. The government of Arizona has also begun to participate in this practice. In addition, Florida governor De Santis has sent flights of migrants to Martha’s Vineyard in Massachusetts under a similar program.
To date, these state governors have bussed over 17,000 individuals to New York City, with over 9,000 being sent to Washington D.C., and hundreds more to Chicago. In response, New York City, Washington D.C., and Chicago have all declared states of emergency to allocate resources toward supporting the individuals bussed to their states.
While these free flight and bussing programs claim to be lawful, many of those transported claim that they were being shipped under false pretenses. For example, undocumented individuals flown to Martha’s Vineyard signed waivers that their travel was free and voluntary, but some have reported that they were told they would be provided with jobs and three months of housing upon their arrival. Others were given cash to take the flights, misled about their destinations, and even given pamphlets that falsely claimed benefits like social security, cash assistance, and aid programs would be available to asylum seekers upon their arrival. In fact, some of the non-citizens were left stranded on the tarmac at their destinations with nobody expecting their arrival to aid them.
In response to these allegations, the sheriff of Bexar County in Texas launched a criminal investigation into the transportation of these undocumented migrants on September 20th. Advocacy groups have also filed a class-action lawsuit on behalf of Venezuelan migrants transported to Massachusetts for the reportedly fraudulent behavior involved in their transport.
International Law on Human Trafficking
The United Nations broadly defines human trafficking as “the recruitment, transportation, transfer, harbouring or receipt of people through force, fraud or deception, with the aim of exploiting them for profit.” Several international instruments exist that define human trafficking as a violation of international law. These include the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (known as the “Palermo Protocol”), which is a supplement to the UN Convention against Transnational Organized Crime, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the International Covenant on Civil and Political Rights (ICCPR) .
While the U.S. President may accede to an international treaty by signature, it typically does not take legal effect until the United States Senate gives its advice and consent to the treaty by a two-thirds vote, at which point the President may ratify the treaty. When the President signs a treaty, he enters into an “Executive Agreement” which can bind the country to the treaty under international law, but this typically does not have force domestically. Ratification, however, can give domestic effect to a treaty with the aid of additional domestic legislation, if necessary.
The United States has signed and ratified the Palermo Protocol with the reservation that all obligations in the protocol be consistent with existing domestic laws. In addition, the country has both signed and ratified the ICCPR. However, in a declaration to the ICCPR, the United States clarified that it considers the treaty to be non-self-executing, meaning that it still needs domestic legislation to give it domestic force. The United States has signed CEDAW, but has yet to ratify it. This demonstrates that the United States has indicated its accession to the Palermo Protocol alone insofar as it concerns domestic law. The country has also passed the Victims of Trafficking and Violence Protection Act of 2000 (TVPA) to address human trafficking in U.S. domestic law.
Under Article 3 of the Palermo Protocol, human trafficking is defined as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” The Protocol defines exploitation, “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” The transportation does not have to cross a national border to be considered trafficking. While the TVPA generally conforms to the definition laid out by the Palermo Protocol, it specifically limits the definition of trafficking domestically to sexual purposes, involuntary servitude, or slavery. The ICCPR only addresses forced labor, servitude, and slavery in the context of trafficking.
Broadly, a crime of human trafficking consists of three components: the act, the means, and the purpose. The act by which trafficking occurs can be the recruitment, transportation, transfer, harboring, or receipt of an individual. The means takes place through threat, force, coercion, fraud, deception, or abuse of power or a position of vulnerability. The purpose of trafficking is exploitation. Victims of trafficking are not restricted by age, country of origin, or gender.
Analysis
While the transportation of non-citizens to east coast cities in the United States does not constitute human trafficking under the TVPA, it is unclear whether it would under the Palermo Protocol. It is clear that the state governors of Texas, Florida, and Arizona have facilitated the act of transportation of non-citizens over thousands of miles, from their state to Washington D.C., New York, or Illinois. Additionally, it is possible from the statements of these non-citizens that this transportation was accomplished by deception or fraud. In fact, the communities of people transported across state lines are uniquely vulnerable to exploitation, being unfamiliar with the United States, its laws, and its policies. State government officials are in a position of power to exploit this vulnerability by having presumptive authority over newcomers to the country.
The U.S. Department of Homeland Security lays out several guidelines for human trafficking. One of the ways in which human traffickers often lure their victims takes place through the promise of a well-paying job. Language barriers and fear of law enforcement often keep victims of trafficking from seeking help. Traffickers often seek to exploit the psychological or emotional vulnerability, economic hardship, or lack of a social safety net of their victims. In this case, it seems likely that state governors engaged in the act of trafficking and had the means to do so.
However, it is unclear whether the purpose of transporting the non-citizens was exploitation. The TVPA only defines trafficking for sexual and labor exploitation, and it appears that the non-citizens sent to sanctuary cities from Texas, Arizona, and Florida were sent there to make a political point. The Palermo Protocol also makes no mention of political exploitation as a purpose of human trafficking. However, the Palermo Protocol lists examples of human trafficking, defining them as a minimum, indicating that human trafficking may take place for purposes other than sexual exploitation, labor exploitation, or the removal of organs. Nevertheless, the Palermo Protocol has never before been used to investigate human trafficking for political purposes. Thus, the acts of state governors to transport migrants across lines may fit the definition of human trafficking under the Palermo Protocol, but it would be a novel use of this organ of international law that is unlikely to come to pass. It would be significantly easier for non-citizens affected by the false promises offered to them to sue the state governors involved for fraud under domestic law instead.
Conclusion
While the acts of the governors in question in this article may not constitute human trafficking under U.S. domestic law, luring migrants across the country can greatly harm those who have been transported. Some of those transported across the nation are asylum seekers escaping persecution from their home countries. After making the arduous journey to the United States, they were fooled by promises of jobs, government benefits, and jobs, all the while they were being used as political pawns. In October of 2022, the government of Texas has finally stopped the practice of bussing migrants to sanctuary cities on the east coast. But this news has come far too late for those who have already been dropped across the country, and need to find entirely new support systems in an already overburdened immigration system.
Author Biography: Mark Rook is a Senior Moderator for the International Law and Policy Brief (ILPB) and third year law student at The George Washington University Law School. He graduated in 2020 from the University of Pennsylvania with a degree in Philosophy, Politics, and Economics. He is also an Associate with GW’s International Law in Domestic Courts journal. His primary fields of interest are international human rights law and immigration law.