Court: Trump’s Illegal Consent Procedure for Refugee Resettlement

As discussed in a prior post, on September 28, 2019, President Trump issued an executive order requiring written consents by states and local governments for the federal government’s resettlement of refugees, and other posts have discussed the issuance to date of such consents by at least 40 states.[1]

On January 15, however, the U.S. District Court for the District of Maryland preliminarily ruled that this executive order was invalid and ordered that its enforcement be temporarily halted.[2]

The Court’s Opinion

The court’s opinion on this issue occurred in a civil lawsuit for preliminary and final injunctive relief against this executive order that was brought by three nonprofit refugee resettlement agencies—HIJAS, Inc., Church World Service, Inc. and Lutheran Immigration and Refugee Service [3]—and in the court’s justification for its granting their motion for a preliminary injunction barring enforcement of this executive order while the case proceeds to final judgment.

The court concluded that the well-established principles for preliminary injunction had been established: (1) “the plaintiffs are likely to succeed on the merits;” (2) “they will suffer irreparable harm that is neither remote nor speculative, but actual and imminent if the injunction is not granted;” (3) “the balance of equities favor their position;” and (4) “the relief they seek is in the public interest.” (Memorandum Opinion at 16.) The key issues for the current legitimate public attention to this case are the court’s opinion on the merits and the public interest.

After a careful analysis, the court concluded that the executive order’s “grant of veto power [to state and local governments] over the resettlement of refugees within their borders ”is arbitrary and capricious . . . as well as inherently susceptible to hidden bias” and is “unlawful” based upon “statutory text and structure, purpose, legislative purpose, judicial holdings, executive practice, the existence of a serious constitutional concern over federal preemption, and numerous arbitrary and capricious administrative deficiencies.” (Memorandum Opinion at 17-27.)

The court also concluded that a preliminary injunction against the President’s executive order was in the public interest by “keeping ‘the President from slipping the boundaries of statutory policy and acting based on irrelevant policy preferences,’. . . having governmental agencies abide by federal laws that govern their existence and operations, . . . [and preventing] States and Local Governments [from having] the power to veto where refugees may be resettled –in the face of clear statutory text and structure, purpose, Congressional intent, executive practice, judicial holdings, and Constitutional doctrine to the contrary.” (Memorandum Opinion at 30-31.)

Conclusion

The Federal Government has a right to appeal this decision to the U.S. Court of Appeals for the Fourth Circuit, but has not expressed any intent to do so. In the meantime, officials in the U.S. State Department, state and local governments, the resettlement agencies and refugees themselves are confused about what to do next.

This case arbitrarily was assigned by the District Court’s Clerk to Senior District Judge Peter J. Messitte, who on August 6, 1993, was nominated by President Bill Clinton and on October 18, 1993, confirmed by the U.S. Senate; on September 1, 2008, he assumed senior status. Judge Messitte is a graduate the University of Chicago Law School, where he was a classmate of this blogger. His undergraduate degree is from Amherst College.[4]

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[1] See Latest U.S. Struggle Over Refugees, dwkcommentaries.com (Dec. 11, 2019);   posts to dwkcommentaries.com. relating to refugee resettlement.

[2] Memorandum Opinion, HIJAS, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Jan. 15, 2020); Order, Hias, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Jan. 15, 2020); Marimow & Sacchetti, Federal judge temporarily halts Trump administration policy allowing local governments to block refugees, Wash. Post (Jan. 15, 2020); Assoc. Press, Judge Halts Trump’s Order Allowing States to Block Refugees, N.Y. Times (Jan. 15, 2020).

[3] The three plaintiff resettlement agencies are members of nine designated “’Resettlement Agencies’ that enter into annual agreements with the Federal Government to provide services to these refugees under the current [U.S.] resettlement program.” (Memorandum Opinion at 1.) The plaintiffs were supported by amici briefs from 12 states, including Minnesota; from the U.S. Conference of Mayors along with 11 mayors and cities, including Minneapolis; and various faith-based organizations with hundreds of affiliates throughout the U.S.  (Id. at 2 (n.2).)

The amici brief for the states asserted the following arguments: (I) The Executive Order Violates the Refugee Act and Interferes with the States’ Sovereign Interests;” (II) “The Refugee Resettlement Consent Process Harms the States’ Refugee Communities;” (III) “The Refugee Resettlement Consent Process Burdens the Staters’ Resources;” (A) Amici States Have Created Highly Effective Refugee Resettlement Systems;” (B) “The Executive Order’s Consent Process Burdens State Refugee Resettlement Programs.” (Brief of the States of California, et al. As Amici Curiae in Support of Plaintiffs’ Motion for Preliminary Injunction, Hias, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Dec. 13, 2019).)

[4] Peter Jo Messitte, Wikipedia; U.S. Dist. Ct., Dist, Md, Peter J. Messitte.

 

Blowback on Two Decisions on Refugee Resettlement 

Two Republican governors, Asa Hutchinson in Arkansas and Greg Abbott in Texas, reached opposite decisions on refugee resettlement. Hutchinson said, “yes;” Abbott, “no.” [1] Both have received blowback.

Arkansas[2]

In Arkansas, some GOP state legislators said they unpleasantly were surprised by Hutchinson’s decision to consent to resettlement and asked him to appear before a legislative committee to explain and justify his decision.

The Governor did that on January 13 and emphasized that his decision was buttressed by the U.S. “acceptance of refugees who have aided overseas U.S. military personnel and [the U.S.] heightened . . .level of security screenings” and by the likelihood that fewer than 50 refugees will likely come to the state’s northwestern Washington County under this program. He also told the committee, “Each of you are leaders in your community. You’ve got a choice to make: You can create fear or you can help resolve fear. I challenge you to help resolve fear, have the facts, and to talk about those.”

Another point by Hutchinson was the “cost-benefit analysis conducted by the Trump administration that found refugees contributed $63 billion more in state and federal taxes than they received between 2005 and 2014. He noted that refugees are typically eager to go to work and become self-sufficient. “I believe . . . it’s a positive thing that we bring immigrants to our country, that they benefit to us in terms of their work and their paying taxes.”

Hutchinson also personally introduced to the committee “a Congolese refugee, who after nearly two decades in a refugee camp in Kenya now lives in . . . [the state] and works as a certified nursing assistant at a senior living facility, and a refugee from Afghanistan who fled his native country after his life became endangered for helping U.S. authorities.”

After the hearing, Republican state Sen. Trent Garner, who had requested the meeting, said, “This isn’t an issue to create fear. This is about legitimate security concerns and having a major change happen and people not being informed.”

On the other hand, “refugee advocates said they were heartened by Hutchinson’s remarks and hoped they would help the public understand resettlement better.” According to Emily Crane Linn, executive director of Canopy Northwest Arkansas, a nonprofit refugee resettlement agency, “I hope that as people ask questions and as they learn the truth, they will come to feel the same way I do about this program, that it is part of what makes this country great, it’s part of what makes our state great and it’s absolutely something that should continue.”

Texas[3]

Governor Abbott’s decision was criticized by at least three faith-based organizations: the state’s Roman Catholic bishops, the Episcopal Church and the Lutheran Immigration and Refugee Service, the last  of which was discussed in the prior post about the decision.

The Texas Catholic Bishops said the Governor’s decision “is deeply discouraging and disheartening. While the . . . [Conference of 16 bishops] respects the governor, this decision is simply misguided. It denies people who are fleeing persecution, including religious persecution, from being able to bring their gifts and talents to our state and contribute to the general common good of all Texans. The refugees who have already resettled in Texas have made our communities even more vibrant. As Catholics, an essential aspect of our faith is to welcome the stranger and care for the alien. We use this occasion to commit ourselves even more ardently to work with all people of good will, including our federal, state and local governments, to help refugees integrate and become productive members of our communities.”

Governor Abbott “has cited his [Catholic] faith to support anti-abortion and other conservative policies. But on the issue of refugees, he sharply diverges from the official positions of his church ― and the example set by Pope Francis.[4]

The Episcopal Church “condemns Gov. Abbott’s decision to reject refugee resettlement in 2020. Texas has long served as a strong partner in the work of welcoming some of the most vulnerable individuals in the world to peace, safety, and a bright future. Texas Episcopalians have also given generously of their time, talents, and treasure to help our refugee brothers and sisters rebuild their lives in the Lone Star State.” The statement added the following:

  • “Texans have long been known for their southern hospitality and generosity of spirit. Additionally, many Texans are people of strong faith who take seriously the Gospel call to welcome the stranger and to help those who are fleeing religious persecution and violence. The Episcopal community in Texas shares these values.”
  • “Refugees bring immense value to communities throughout Texas. They have invigorated the economy, brought innovation to small towns, and made communities stronger through their contributions to public life and cultural institutions. Refugees in Texas are students, entrepreneurs, dedicated employees, customers, elected officials, and community leaders – just like us. They are us.”

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[1] See these posts to dwkcommentaries.com: Five Mores States Have Consented to Refugee Resettlement (Jan.7, 2020); Texas “No” to Refugee Resettlement (Jan. 11, 2020).

[2]  Field, Arkansas governor defends refugee decision, urges legislators to ‘help resolve fear,’ Ark. Democrat Gazette (Jan. 14, 2020); Assoc. Press, Arkansas Governor Defends Decision to Accept New Refugees, N.Y. Times (Jan. 13, 2020).

[3]   Texas Catholic Conference of Bishops, Texas Catholic Bishops respond to Governor Abbott’s decision to turn away refugees (Jan.10, 2020); Kuruvilla, Texas Catholic Bishops Denounce Governor Abbott’s Decision To End Refugee Resettlement, HuffPost (Jan. 13, 2020); Burke, Every Catholic bishop in Texas is slamming Gov. Abbott’s decision to bar refugees, CNN (Jan. 13, 2020); Episcopal Church statement on Texas Gov. Abbott’s decision to reject refugee resettlement (Jan. 11, 2020).

[4] See Pope Francis Reminding Us To Welcome, Protect, Promote and Integrate Refugees and Migrants, dwkcommentaries. com (Jan. 1, 2020)..

Texas Refuses To Consent to Refugee Resettlement

On January 10, Governor Greg Abbott (Rep.) sent a letter to Secretary Pompeo announcing his state’s refusal to consent to refugee resettlement. His letter said, ““Texas has carried more than its share in assisting the refugee resettlement process and appreciates that other states are available to help with these efforts. Since FY2010, more refugees have been received in Texas than in any other state. In fact, over that decade, roughly 10% of all refugees resettled in the United States have been placed in Texas.” He added, “Texas has been left by Congress to deal with disproportionate migration issues resulting from a broken federal immigration system.” He also cited the recent surge in migrants crossing the southwestern border last year as a reason for turning away refugees now. [1]

This refusal was contrary to the desires of major cities in the state—San Antonio, Dallas and Houston. The Mayor of Houston reacted with these words: “Regardless of where someone is from, who they are or what they believe, there is a home for them in Houston. Our welcoming spirit has led to our city becoming the national leader in refugee resettlement.” Negative words also came from these groups:

  • Lutheran Immigration and Refugee Service: “This is a deeply disappointing decision – although not surprising given Texas’ previous but unsuccessful opposition to refugee resettlement a few years ago. This is precisely why we filed a lawsuit against President Trump’s unlawful executive order, and we are confident that justice will be served — allowing children and families who have been waiting in desperation for years to be reunited with their family in Texas.” The Service added, “Nearly 2,500 refugees started to rebuild their lives in Texas last year, many of whom have additional family members in harm’s way seeking to join them in safety. These families have been torn apart by violence, war and persecution — but we never thought they would be needlessly separated by a U.S. state official.”
  • The International Rescue Committee: “In addition to making refugees’ lives harder, Texas now forfeits the opportunity for a growing business community that depends on refugees. It forfeits the cultural contributions, the growth, and ingenuity the state has come to enjoy through resettling refugees.”

The Texas decision leaves 40 consenting states (22 Democratic and 18 Republican) and 9 publicly not committed (7 Republican (Alabama, Florida, Georgia, Mississippi, South Carolina, Vermont and Wyoming) and two Democratic (Hawaii and New York)). Remember that failure to respond before the deadline, which might be January 21, 2020, will be treated as a refusal to consent.[2]

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[1] Kanno-Youngs, Texas Governor Shuts Gate to Refugees, Using New Power Granted by Trump, N.Y. Times (Jan. 10, 2020); Romo, Gov. Greg Abbott Says New Refugees Won’t Be Allowed To Settle in Texas. NPR (Jan. 10, 2020); Thebault, Texas is rejecting new refugees under Trump executive order, Wash. Post (Jan. 10,2020); Lutheran Immigration and Refugee Service Profoundly Disappointed by Texas Governor’s Decision To Opt Out of Refugee Resettlement (Jan. 10, 2020).

[2] See the following posts to dwkcommentaries about previous states’ consents: Latest U.S. Struggle Over Refugees (Dec. 11, 2019); Minnesota and Minneapolis Say “Yes” to Refugees (Dec. 14, 2019); Tennessee Consents to Refugee Resettlement (Dec. 20, 2019); Another Update on Consents to Refugee Resettlement (Dec. 30, 2019); Five More States Have Consented to Refugee Resettlement (Jan. 7, 2020): Alaska Says “Yes” to Refugee Resettlement (Jan.8, 2020).

 

 

 

Five More States Have Consented to Refugee Resettlement     

A website from the Lutheran Immigration and Refugee Service has a list of 39 states that so far have consented to refugee resettlement with hyperlinks to the relevant documents. This list includes five states that have so consented (three Republican governors (Idaho, Maryland and Missouri) and two Democratic governors (California and Nevada)) in addition to the 34 previously identified in a post to this blog:  [1]

Justifications for Consents

These five additional states provided justifications for their consent. Here they are along with those from four of the previously identified 34 states (Arkansas, Indiana, Tennessee and West Virginia).

Arkansas.[2] Governor Asa Hutchinson on December 23 issued a consent letter to Secretary Pompeo, stating, “Arkansans have a history of welcoming refugees. While we fully support control of our borders and oppose illegal immigration, we also value the contribution of immigrants and understand the importance of America continuing to be a welcoming nation for those truly seeking refuge and following the legal path to our land. Immigrants bring energy, a thirst for freedom, and a desire to pursue the American dream. This is America’s strength and part of our future.”

California.[3] In a December 20, 2019, letter to Secretary Pompeo, Governor Gavin Newsom said, “the State of California is proud to be a welcoming state, and is committed to the continued resettlement of refugees in partnership with local jurisdictions and community partners. California recognizes its resettlement programs and services are an indispensable lifeline to refugees who have been forcibly dispatched from their home countries and cannot rebuild their lives where they first fled.”

Governor Newsom added, “The refugee resettlement program has a long history in California, spanning over 40 years and successfully resettling over 700,000 men, women and children. During these four decades, refugees continuously have contributed to the enrichment of our economy, culture, and society. California’s communities have flourished because of their diversity and ongoing ability to embrace refugees and immigrant families. . . . Refugees deserve our support and we will keep our doors open to these families and people to sustain  an inclusive California for all.”

Idaho.[4]  Governor Brad Little’s December 30, 2019 letter to Secretary of State Michael Pompeo merely said the state consented after all of its counties had consented.

Indiana.[5] Governor Eric Holcomb’s December 13th letter to to Cole Vega (Executive Director (Exodus Refugee Immigration, Inc.), “Indiana is a destination of certainty, stability and opportunity. As a state, we are on course to become the absolute best place in America to grow as an individual, a family, a business and as a community. Our long tradition of welcoming and helping to resettle refugees with support from our federal partners, shows the world the compassion of Hoosiers and our willingness to give others the ability to grow and prosper in the great state of Indiana.”

“In just the last five years, State based non-profit agencies have resettled thousands of deserving, qualified individuals in the Hoosier state, who have been fully and carefully vetted by relevant federal government agencies. These are . . . individuals who have gone through all the proper channels, were persecuted for their religious or political beliefs in their homeland and have sought and been granted refugee status in our nation of immigrants.”

Maryland.[6] On December 30, Governor Larry Hogan’s consent letter to Secretary Pompeo said, “Providing more flexibility to states has been one of my key priorities, and I appreciate the administration’s renewed emphasis on state and local engagement in determining policies that affect our security and resources.”

Governor Hogan also stated, “With proper diligence and in conjunction with the continued cooperation of local jurisdictions in our state, Maryland consents to receive legally vetted resettlement refugees in Fiscal Year 2020, per the terms of the Executive Order. We are willing to accept refugees who the federal government has determined are properly and legally seeking refugee status and have been adequately vetted. This, as you know, is different from any kind of ‘sanctuary’ status for those in the United States unlawfully. Maryland’s approach is consistent with both our laws and our values.”

A local newspaper article about this decision stated that Maryland had accepted nearly 10,000 refugees since 2016.

Missouri.[7] Governor Michael Parson’s December 30, 2019 letter to Secretary Pompeo said, “Missouri has a long and rich history of immigration, dating back to America’s earliest explorers, fur traders, and missionaries. Today, Missouri’s population includes thousands of former refugees who have become vital members of our communities. Since 2002, nearly 18,000 refugees from 45 countries have resettled in Missouri.”

The Governor continued, “In Missouri, state organizations and faith-based groups work tirelessly to support refugee resettlement. Currently, there are five agencies that integrate refugees in St. Louis, Kansas City, Columbia, and Springfield, where they have helped strengthen local economies, especially through entrepreneurship. These groups do an excellent job of transitioning newly settled populations, ensuring they are educated, trained, and prepared to assimilate into their new community. In fact, St. Louis boasts one of the largest Bosnian populations outside that country itself. Community volunteers, especially faith-based partners, continue to be an integral part of such local resettlement efforts.”

The Governor concluded, “We will continue to work hard to ensure refugees become a thriving part of our communities, and I am confident this demonstration of compassion will mark the first step in these immigrants becoming  patriotic and productive fellow Americans.”

 Nevada.[8] Governor Steve Sisolak in a December 18, 2019 letter to Secretary Pompeo stated, “Nevada is proud of our long-standing tradition of resettling refugees. Since the 1970s, Republican and Democratic Governors from Nevada have welcomed these individuals into our state with open arms. Earlier this year, I had the opportunity to meet with dozens of refugee children in the State Capitol. . . . While their unimaginable experiences of suffering and hardship may have originated in different areas around the globe, the personal stories they shared were defined by courage, hope and resilience. These stories embody the dignity and values of this country. Such is the story of Nevada Assemblyman Alexander Assefa. Mr. Assefa came to the U.S. as a refugee with similar hopes and dreams. After a lot of hard work, he became a pilot, a small business owner, and he now proudly serves in the Nevada State Legislature. Above all, he is a proud American.”

“We need not forget that refugees fled for their lives after enduring persecution, war and dire humanitarian conditions. Many waited several years in remote places, while undergoing extensive background checks and security clearances, for the opportunity to start a new life in the United States. Once here, refugees become productive, responsible and self-sufficient members of society and account for an important part of our workforce and that drives our economic engine.”

Tennessee.[9] After a perfunctory consent letter to Secretary Pompeo, Governor Bill Lee was more fulsome in a December 18 letter to the state’s Lieutenant Governor and Speaker of its House of Representatives that stated, “Resettlement will be facilitated by the Trump Administration and non-profit organizations with extensive experience in this area. The refugee population in Tennessee is small, and I believe our consent to cooperate and consult with the Trump Administration to provide a safe harbor for those who are fleeing religious persecution and violent conflict is the right decision. The United States and Tennessee have always been, since the very founding of our nation, a shining beacon of freedom and opportunity for the persecuted and oppressed, and particularly those suffering religious persecution. My commitment to these ideals is based on my faith, personally visiting refugee camps on multiple continents, and my years of experience ministering to refugees here in Tennessee.”

West Virginia.[10]  Governor Jim Justice’s December 20, 2019 letter to Secretary Pompeo, said, in part, “West Virginia has had great success with our refugee resettlement agency, which has been in operation since 1978. Refugees who have resettled here have become productive citizens and are welcomed into our West Virginia family.”

Conclusion

Now we wait to learn whether the other 11 states will also consent to such resettlements. They are nine states with Republican governors (Alabama, Alaska, Florida, Georgia, Mississippi, South Carolina, Texas, Vermont [11] and Wyoming) and two states with Democratic governors (Hawaii and New York). The following  colored map on the Lutheran Immigration and Refugee Service’s website showing the consenting states in green and the 11 remaining states in gray emphasizes that the most of the remaining states are in the Deep South.

Consent Map Refugee Resettlement

 

This blogger believes it safe to assume that the three remaining Democratic  governors will consent and that it is more problematical whether the eight remaining Republican governors, primarily from the Deep South, will do so.

In the meantime those of us who support refugees should celebrate and congratulate those states that have consented and shared the many contributions to their states by previously resettled refugees.

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[1] Lutheran Immigrant & Refugee Service, Consents to Refugee Resettlement.

[2 ] Letter, Governor Hutchinson to Secretary Pompeo (Dec. 23, 2019); Gov. Hutchinson agrees to allow refugees into Arkansas, THV (Dec. 24, 2019).

[3]  Letter, Governor Newsom to Secretary Pompeo (Dec. 20, 2019).

[4] Letter, Governor Little to Secretary Pompeo (Dec. 30, 2019); Blake, County, Little offers support for refugee resettlement, but questions over jurisdiction remain, 6KPVI (Dec. 30, 2019); Assoc. Press, County, governor support refugee resettlement in Idaho, Id.Bus.Review (Jan. 3, 2002). /

[5]  Letter, Governor Holcomb to Cole Vega (Exec. Dir. Exodus Refugee Immigration, Inc.) (Dec. 17, 2019);

[6] Letter, Governor Hogan to Secretary Pompeo (Dec. 30, 2019); Sanchez & Hutzell, Maryland Gov. Hogan agrees to continue accepting refugees, Capital Gazette (Jan. 1, 2020).Tan, Maryland Gov. Hogan issues written consent for refugee admissions in response to Trump order, Wash. Post (Jan. 2, 2020).

[7] Letter, Governor Parson to Secretary Pompeo (Dec. 30, 2019); Suntrup, Gov. Mike Parson says Missouri will continue accepting refugees, St. Louis Post -Dispatch   (Jan. 1, 2020).

[8]  Letter, Governor Sisolak to Secretary Pompeo (Dec. 18, 2019).

[9]  Letter, Governor Lee to Secretary Pompeo (Dec. 18, 2019); Letter, Governor Lee to Lt. Gov. McNally & Speaker Sexton (Dec. 18, 2019).

[10] Letter, Governor Justice to Secretary Pompeo (Dec. 20, 2019).

[11] This blog’s 12/30/19 post erroneously listed Vermont as consenting.