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Hias, Inc. v. Trump

United States District Court, D. Maryland

January 15, 2020

HIAS, INC., et al., Plaintiffs,
DONALD TRUMP, in his official capacity as President of the United States, et al., Defendants.



         I. Introduction

         HIAS, Inc., Church World Service, Inc., and Lutheran Immigration and Refugee Service, Inc. have sued President Donald Trump and three of his cabinet secretaries, seeking preliminary and permanent injunctive relief. They challenge Executive Order 13888, 84 Fed. Reg. 52, 355 (Sept. 26, 2019) (Order), that they allege would give individual U.S. States and Local Governments the power to veto, by refusing to consent to, the resettlement in their respective jurisdictions of certain refugees from around the world. Plaintiffs are three of nine designated "Resettlement Agencies" that enter into annual agreements with the Federal Government to provide services to these refugees under the current refugee resettlement program of this country, as described more fully infra. Defendants, in their official capacities, are the President, Secretary of State Michael Pompeo, Secretary of Health and Human Services Alex Azar II, and Acting Secretary of Homeland Security Chad Wolf, all of whom have developed and/or are responsible for implementing the Order.

         The case is at the Preliminary Injunction phase.[1]

         Defendants, represented by the U.S. Department of Justice, have filed an Opposition to the Motion for Preliminary Injunction to which Plaintiffs have replied. Numerous entities, with leave of Court, have filed briefs as amici curiae.[2] Oral argument by counsel for the parties has been held.

         For the reasons that follow, the Court GRANTS the Motion for Preliminary Injunction, ECF No. 18, and reinstates the status quo immediately preceding the issuance of the proclamation of the Order on September 26, 2019, pending further order of the Court.

         II. Who is a Refugee?

         It is of critical importance to understand who a "refugee" is in the context of this case. For present purposes, a "refugee" has been defined under U.S. law, in pertinent part, as: "any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion". 8 U.S.C. § 1101(a)(42).[3] See also 8 U.S.C. § 1522. This definition traces back to the definition of "refugee" found in the Statute of the Office of the United Nations High Commission for Refugees (UNHCR) [1950] and the definition in the 1951 Convention Relating to the Status of Refugees.[4]

         "The 1967 Refugee Protocol incorporated the 1951 Convention's well-founded fear definition in its first article... [such that] [t]he United States owes certain obligations to refugees under international law by virtue of its ratification of the 1967 Protocol, and the [UNHCR], speaking for the international community, is the chief guarantor of these obligations".[5] In 1980, in order to bring U.S. law into conformity with the Protocol, Congress enacted the Refugee Act of 1980.[6] In its declaration of policies and objectives prefacing the Act, Congress:

(a) ... declares that it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands, including, where appropriate, humanitarian assistance for their care and maintenance in asylum areas, efforts to promote opportunities for resettlement or voluntary repatriation, aid for necessary transportation and processing, admission to this country of refugees of special humanitarian concern to the United States, and transitional assistance to refugees in the United States. The Congress further declares that it is the policy of the United States to encourage all nations to provide assistance and resettlement opportunities to refugees to the fullest extent possible, (b) The objectives of this Act are to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States, and to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted.

         Refugee Act of 1980, Pub. L. No. 96-212 § 101, 94 Stat. 102.

         "Refugees", then, in terms of the present case, comprise a special category of persons.[7]

         These refugees do not apply for resettlement directly to the Country they hope to go to.[8]

         In most cases, the UNHCR begins by identifying vulnerable individuals (often in conjunction with a U.S. embassy). A number of countries, including the United States, as signatories to the 1967 Protocol, have agreed to cooperate in determining which refugees designated by the UNHCR will be admitted for resettlement. Canada now accepts a greater number of refugees for resettlement under the Convention and Protocol than does the U.S., which historically has accepted the most. See U.N. High Commissioner on Refugees, Global Trends: Forced Displacement in 2018 (2019) at 32.

         As of December 31, 2019, the Department of State reports that 30, 000 refugees were resettled in the United States in Fiscal Year 2019. See Dep't of State, Bureau of Population, Refugees, and Migration, Refugee Processing Center, PRM Admissions Graph Dec. 31, 2019 (available at /admissions-and-arrivals/) (last visited Jan. 13, 2020).[9] The main countries of origin of refugees who settled in the U.S. in FY 2018 were the Democratic Republic of Congo, Myanmar, and Ukraine. Dep't of State, Dep't of Homeland Security & Dep't of Health and Hum. Servs., Report to Congress: Proposed Refugee Admissions for Fiscal Year 2020 (2019) at 25. The top U.S. States accepting refugee resettlement in FY 2018 were Texas, Washington, Ohio, California, New York, and Arizona. Id. at 27.

         III. A Brief Summary of Resettlement History

         Anastasia Brown and Todd Scribner in the Journal of Migration and Human Security briefly summarize the history of the refugee settlement system in the United States:

World War II caused the displacement of millions of people throughout Europe. In response, the United States initiated a public-private partnership that assisted in the resettlement of hundreds of thousands of the region's displaced persons. For nearly 40 years after the War, the U.S. commitment to refugee resettlement played out in an ad hoc fashion as it responded to emerging crises in different ways. During this period the government's involvement with resettlement became gradually intertwined with that of nongovernmental resettlement agencies, which came to play an increasingly vital role in the resettlement process. The budding relationship that began in the middle decades of the twentieth century set the foundation for an expansive and dynamic public-private partnership that continues to this day. The Refugee Act of 1980 solidified the relationship between resettlement agencies and the federal government, established political asylum in U.S. law, and created the refugee resettlement program and a series of assistance programs to help refugees transition to life in the United States. This legislation marked a decisive turning point in the field of refugee resettlement.

         Anastasia Brown and Todd Scribner, Unfulfilled Promises, Future Possibilities: The Refugee Resettlement System in the United States, 2 J. Migration and Hum. Security, No. 2, 101, 101 (2014).

         IV. The Resettlement Process in the U.S.

         After the UNHCR identifies and recommends a potential refugee for resettlement in the U.S., the U.S. undertakes its own vetting process (including, for example, administering medical tests and checking global fingerprint databases). The President, after consultation with Congress, determines the numerical ceiling for refugees each year (known as the "Presidential Determination"). See 8 U.S.C. §1157(a)(2). For Fiscal Year 2020, for example, President Trump has set the ceiling at 18, 000, see Presidential Determination on Refugee Admissions for Fiscal Year 2020, 84 Fed. Reg. 65, 903 (Nov. 1, 2019), as compared to a ceiling of 110, 000 set by President Obama in 2016, see Presidential Determination on Refugee Admissions for Fiscal Year 2017, 81 Fed. Reg. 70, 315 (Sept. 28, 2016). Eligible refugees are then interviewed by officers of the U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS), and if deemed admissible, are resettled through what is known as the Refugee Admissions Program (RAP), which is jointly administered by a division within the Department of State (DOS) and the Department of Health and Human Services (HHS). See U.S. Citizenship and Immigration Services, Refugee Screening Fact Sheet (2018) (available at Asylum%2C%20and%20Int%271%20Ops/RefugeeScreeningandVettingFact Sheet.pdf). See also Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902, 903 (7th Cir. 2016) (Posner, J.) ("all persons seeking to enter the United States as refugees are required to undergo multiple layers of screening by the federal government, following screening by the United Nations High Commissioner for Refugees, before they can be admitted to the United States. The process can take up to two years").

         Once DHS conditionally approves an applicant for resettlement, the prospective refugee receives "sponsorship assurance" from one of the nine Resettlement Agencies that has entered into a cooperative agreement with the State Department to assist in the resettlement of refugees.

         The "sponsorship assurance" must be received before the prospective refugee may travel to the U.S. See ECF No. 1 ¶ 40. The Resettlement Agency then assumes responsibility for placing the prospective refugee with one of its affiliates, and commences to provide services to the candidate, which are intended to help him or her obtain self-sufficiency. See Id. ¶ 41. In the past, it has taken between 18 to 24 months from the time of the individual's application for admission to actual resettlement, although more recently it has reportedly taken longer. See Id. ¶ 45.

         Through its Reception and Placement Program the State Department provides funding up to a certain amount to the Resettlement Agencies for each refugee they resettle (e.g. to pay for housing, furnishings, food, clothing and the like). See 8 U.S.C. § 1522(b)(1). This is intended to cover the first 90 days a refugee is in the U.S. Thereafter, the Office of Refugee Resettlement (ORR), which is within HHS, reimburses the States for paying for longer-term assistance, including social services, as well as medical assistance, and even cash. See ECF No. 1 ¶ ¶ 58-59; 8 U.S.C. § 1521.

         Heretofore, pursuant to 8 U.S.C. § 1522(a) (Appendix I hereto), the Federal resettlement authorities and the Resettlement Agencies have been directed to meet and consult with State and Local Governments in order to establish policies and strategies for the placement and resettlement of the refugees, in the course of which, acting in concert, they are directed to take into account several factors, including the availability of employment opportunities, affordable housing, and public and private resources in the destination (e.g. educational, healthcare, and mental health resources).[10]

         If the refugee is deemed acceptable for resettlement, the State Department assigns his or her case to one of nine Resettlement Agencies (Plaintiffs being three of the nine), which help the refugee integrate into his or her new U.S. community.

         V. The Challenged Executive Order

         On September 26, 2019, President Trump issued Executive Order 13888 proposing to modify what from at least the mid-1980s to date has been the heart of resettlement practice. Instead of merely giving States and Local Governments an active voice over whether refugees will be resettled in their jurisdictions, the Order provides that the Federal Government "should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State's Reception and Placement Program". Order § 1. In other words, the Order gives individual States and Local Governments veto power over resettlement.[11]

         Of immediate concern, as announced by Defendants on November 6, 2019, Resettlement Agencies, including Plaintiffs, that seek to continue providing initial resettlement services beyond June 1, 2020 must obtain prior written consent from any State and Local Government jurisdiction in which they propose to resettle refugees. See U.S. Dep't of State, Bureau of Population, Refugees, and Migration, 2020 Notice of Funding Opportunity for Reception and Placement Program (Nov. 6, 2019) (Funding Notice). Of even more pressing concern, the State Department has announced that - by January 21, 2020 (the date proposals are due) - the Resettlement Agencies must submit proposals demonstrating to the Federal resettlement authorities that they have solicited and obtained the written consents from the State and Local Governments where the refugees will be placed after June 1, 2020.Id. at 8, 37, 42.[12]

         The Resettlement Agencies understand that any federal funding they receive for services rendered after June 1, 2020 (the award period) will be limited by the number of State and Local Governments that, by January 21, 2020, have given (or have been solicited to give) their written consent to receive refugees. However, beginning June 1, 2020 refugees may only be resettled where State and Local Governments have in fact given such consents.

         VI. Judicial Review of Executive Orders

         Executive Orders are of course subject to judicial review. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935); see generally David M. Driesen, Judicial Review of Executive Orders' Rationality, 98 Bos. U. L. Rev. 1013 (2018). The question is, What standard should the courts apply in reviewing the Orders? Although the Supreme Court has held that the President is not subject to the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and by implication that the "arbitrary and capricious" and "abuse of discretion" standards of the APA do not apply to him, see Franklin v. Massachusetts, 505 U.S. 788 (1992), subordinate officers (three of whom are Defendants here) are subject to the Act, see Id. at 828 (Scalia, J., concurring) ("Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive"). In evaluating the President's Orders the Supreme Court has applied a rationality standard - deferential to be sure. See, e.g., Trump v. Hawaii, 138 S.Ct. 2392, 2411, 2420 (2018) ("We may assume that § 1182(f) does not allow the President to expressly override particular provisions of the [Immigration and Naturalization Act]. But plaintiffs have not identified any conflict between the statute and the Proclamation that would implicitly bar the President from addressing deficiencies in the Nation's vetting system"). Constitutional challenges are simply evaluated as such. The actions either are or they are not unconstitutional.

         Justice Jackson's "three part scheme" for evaluating Presidential Powers, as set forth in his concurring opinion in the Youngstown case, endorsed by Justice Kennedy and three other Justices in a concurring opinion in Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006), provides useful context when assessing whether executive action is authorized:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right ...

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