The Biden administration’s announcement that it will soon lift a public health order that allows the quick expulsion of immigrants arriving at the southwest border prompted vows by some Republican politicians to take measures on their own to combat illegal immigration.

Texas Gov. Greg Abbott said at a press conference April 6 that starting the next day, state troopers "equipped with riot gear" will meet immigrants at the southwest border and then bus them to the U.S. Capitol in Washington, D.C.

A press release from Abbott’s office took a softer stance and said immigrants will only go if they volunteer and after they have been processed by the Department of Homeland Security.

Some politicians derided Abbott’s plan as an attention-grabbing political stunt while he fundraises for re-election against Democrat Beto O’Rourke. Others including Sen. Ted Cruz, R-Texas, praised the idea.

Whether Abbott’s plan is a gimmick is a matter of opinion. But we wondered about another frequent question on social media: Is it legal?

Scott Uhl, a Texas political activist who opposes Abbott, questioned on Twitter if Abbott and Cruz "intend to willfully violate federal law by knowingly and intentionally transporting illegal aliens across state lines?" 

We contacted Abbott’s press office to ask questions about his legal authority and did not receive a response. 

Experts told PolitiFact that Abbott’s plan likely doesn’t break federal immigration law, because Texas would be transporting immigrants after Homeland Security determined that they can move around the U.S. The key point is that they would have to want to travel to Washington. They could not be forced to go there.

The Biden administration announced that on May 23 it will stop enforcing Title 42, a public health order that allows U.S. border agents to expel immigrants arriving at the border, without giving them a chance to apply for asylum. The order was initially invoked under the Trump administration to mitigate the spread of COVID-19 in the United States. On April 1, the Centers for Disease Control and Prevention said the order was "no longer necessary" after assessing public health conditions. 

Throughout the pandemic, immigration officials have prevented immigrants from entering the U.S. by expelling them under the public health order and by enforcing standard proceedings under immigration law. Officials say they will continue to enforce immigration laws even after the public health order ends.

Abbott told Fox News that his plan is to "take the border" to President Joe Biden by dropping off the immigrants in D.C., using charter buses and flights.

Federal law says it is a crime to bring a person illegally to the U.S. or encourage them to enter illegally or shield them from detection including by "any means of transportation."

It is also illegal to transport or attempt to transport immigrants "knowing or in reckless disregard of the fact" that they are in the country illegally.

The National Immigration Project of the National Lawyers Guild, an organization which works to advance the rights of noncitizens, wrote a 2017 analysis about the offenses pertaining to harboring and transporting immigrants in the country illegally. The analysis said that simply giving a ride to a noncitizen is not a crime. But it is a crime if that transportation is "in furtherance of such violation of law," as the law says.

Carlos Moctezuma García, a lawyer in McAllen, Texas, and chair of the National Immigration Project, said the law is commonly used to prosecute human smugglers. García said while there were fears it would be used to prosecute groups that helped immigrants here illegally during the Trump administration, he was not aware of any such prosecutions. 

The federal Office of Refugee Resettlement "regularly transports kids in custody," García said. "Greyhound transports migrants who have been processed. I don't see how it would be illegal" for Abbott to also transport immigrants, he said.

Other immigration law experts including David Leopold, former president of the American Immigration Lawyers Association, and Denise Gilman, director of the immigration clinic at the University of Texas Law School, reached the same conclusion.

Leopold, who advised the Biden transition team on immigration matters, opposes Abbott’s plan but said nothing he is doing hides, employs or gets immigrants into a situation where they are less likely to be discovered.

Gilman said that Texas would be transporting the immigrants after Homeland Security has determined that they can move around the U.S.

However, Gilman said that Abbott’s initial public remarks, which did not describe his plans as voluntary for immigrants, raised concerns about whether state officials will coerce immigrants,  which would be a violation of their constitutional rights to freedom of movement and liberty. 

While the federal government has authority to move migrants and take them into custody, the state doesn’t hold the same powers. The state can only detain individuals related to state violations if there is evidence of a crime.

Abbott acknowledged that his order could not force anyone to board a bus or plane. "If I were to go to Washington, D.C., and take and put you on a bus and take you down to the Rio Grande Valley, that would be kidnapping," Abbott said in an April 7 interview with Fox News. "Same thing applies to anybody who refuses to get onto a bus. That would be kidnapping even though it would be by a law enforcement agency."

After immigrants voluntarily board a bus, it’s legally dubious as to whether they can be forced to stay aboard for the entire trip once the vehicle crosses state lines and is no longer in Texas’ legal jurisdiction, Doris Meissner, a senior fellow at the nonpartisan Migration Policy Institute in Washington, told the Austin American-Statesman. 

Abbott has previously squared off with federal officials in the Biden administration over the transportation of migrants. 

In 2021, Abbott issued an order banning anyone other than the federal or state government or law enforcement from transporting migrants illegally in the country. The order also told law enforcement to seize vehicles transporting people here illegally, citing the COVID-19 pandemic. The Department of Justice and the ACLU challenged his order. Courts blocked Abbott’s order and found it interfered with the federal government’s ability to transport migrants. 

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