Syrian Refugees Receive Green Light from U.S. Courts, Mixed Reception from States and Congress

U.S. refugee policy has come under renewed fire in the wake of terror attacks in Brussels on March 22. As details of the bombings, believed to be perpetrated by several Belgian nationals with ties to ISIS, began to emerge, a number of U.S. lawmakers, presidential candidates, and pundits were quick to reiterate concerns about refugee admissions from the war-torn countries of the Middle East. Whether the U.S. refugee admissions program could be a gateway for terrorists has been the subject of national debate—and legal action at the state level—since ISIS-affiliated terrorists killed 130 people and wounded 370 in Paris in November 2015. However, to this point no refugee who came through the U.S. resettlement program has been involved in a terrorist attack on U.S. soil

Efforts by more than two dozen governors to prevent the resettlement of Syrian refugees in their states after the attacks have floundered in federal courts. Meanwhile, members of Congress have sought new avenues to limit Syrian and other refugee admissions, most recently through legislation that would shift control of refugee policy to Congress from the executive branch. With the 2016 presidential election approaching, U.S. refugee policy is bound to maintain prominence in national debates.

Following the Paris assaults, questions about the nationality of the terrorists and how they entered France triggered an intense debate in Europe. While the identified assailants were determined to be EU nationals, at least two entered the European Union using fake Syrian passports, and may have posed as refugees amid the more than 1 million migrants and asylum seekers who entered Europe in 2015, approximately half from war-torn Syria. This speculation quickly reinvigorated controversy surrounding the admission of Syrian refugees in the United States. Two months earlier, the White House had announced, amid some political opposition, an increase in the number of Syrian refugees to be resettled in the United States, from 2,000 in fiscal year (FY) 2015 to 10,000 in FY 2016.

After the violence in Paris prompted new fears that Syrian refugees could pose security threats, 31 U.S. governors declared opposition to the placement of such refugees in their states, with some issuing executive orders barring state agencies from assisting in their resettlement. The U.S. House quickly passed a bill to effectively stop the admission of refugees from Syria and Iraq, and the issue became a flashpoint in presidential primary debates, with GOP hopefuls largely calling for a halt or major changes to refugee admissions. On the other hand, at least 15 governors and dozens of mayors welcomed the arrival of Syrian refugees, while refugee advocates and the Obama administration sought to reassure the public of the integrity of the screening process and ability to detect terrorist threats. Still, in December, a Quinnipiac poll found that 51 percent of U.S. voters supported blocking the admission of Syrian refugees.

State Activism

Federal courts have thus far thwarted state efforts to bar Syrian refugee resettlement. Most recently, on February 29, U.S. District Judge Tanya Walton Pratt in Indianapolis preliminarily struck down an executive order issued by Indiana Governor Mike Pence barring state agencies from paying federal grant funds to local refugee resettlement agencies for social services provided to Syrian refugees. The measure was intended to discourage the federal placement of Syrian refugees in Indiana. Judge Pratt found the “state’s conduct clearly discriminates against Syrian refugees based on their national origin." The American Civil Liberties Union (ACLU) of Indiana brought the lawsuit against the state in November. On March 8, Indiana officials filed notice of intent to appeal.

The Indiana decision came on the heels of a similar ruling in Texas. On February 8, U.S. District Judge David C. Godbey in Dallas denied the request by the state Health and Human Services Commission for a temporary injunction to bar the federal government from resettling Syrians in Texas. The lawsuit, filed in January, argued the federal government, in violation of the 1980 Refugee Act, had failed to properly consult with the state about the resettlement of several Syrian refugees. In declining to issue the injunction, the judge found that Texas failed to demonstrate a substantial threat of irreparable injury to the state and that the state’s claim was ultimately unlikely to succeed on the merits. He further noted, “The Court does not deny that the Syrian refugees pose some risk. That would be foolish. In our country, however, it is the federal executive that is charged with assessing and mitigating that risk, not the states and not the courts.” Judge Godbey had previously declined to bar the resettlement of specific Syrian families scheduled to arrive in Texas in December and January.

Legal challenges in two other states remain in play. On January 7, Alabama Governor Robert Bentley filed a lawsuit also arguing that the Obama administration failed to sufficiently consult with the state on refugee placement. As a result, the suit contends, the federal government has denied Alabama a meaningful role in the resettlement process, and the state has been unable to plan for the arrival of refugees with regard to security, social services, and public assistance. The lawsuit seeks declaratory relief for the federal government to acknowledge its inadequate cooperation with the state, and a pledge not to resettle refugees without proper consultation in the future. It also requests complete files on refugees, including their medical histories, and “certification” that refugees placed in Alabama “pose no security threat.” The lawsuit applies to all refugees, not just those from Syria. A hearing has not yet taken place in the case. In Tennessee, the legislature is considering a resolution that would also require the state to sue the federal government over its failure to consult on refugee resettlement. The measure cleared a General Assembly subcommittee on March 17 after passing the Senate in February. Tennessee Governor Bill Haslam has indicated his opposition to the bill.

State Consultation

Under the 1980 Refugee Act, the federal government is required to “consult regularly (not less often than quarterly) with State and local governments" about the refugee resettlement process and the intended distribution of refugees among states and localities, prior to refugees’ placement. The process involves coordination between the federal government and states on new arrivals, collaboration on policies and strategies for resettlement, and includes safeguards for states to avoid placements in communities that are already highly impacted by the presence refugees (for example, in terms of the relative size of the refugee population and the availability of jobs and affordable housing).

If the outcomes of the Texas and Indiana cases are any indication, it is unlikely federal courts will uphold states’ claims that they have the authority to reject certain refugees for resettlement. In an important parallel development, attorneys general in several states whose governors opposed resettling Syrian refugees—including Tennessee and Georgia—have issued similar legal opinions close to those in the Texas and Indiana courts, supporting the broad consensus on this issue.

However, questions of what constitutes proper consultation, and what information should be exchanged during the process—as raised in the Alabama case—may be open for future legal interpretation.

The Congressional Response

Since the Paris attacks, some members of Congress have engaged in concerted efforts to stop the admission of Syrian refugees. Most recently, on March 20, the House Judiciary Committee approved a bill—introduced by Raul Labrador (R-ID) and Committee Chairman Robert Goodlatte (R-VA)—that would reform the refugee system by allowing Congress, rather than the executive branch, to set the annual number of refugee admissions. The legislation would also lower the total number of refugees admitted to the United States to 60,000 each year, give states and localities the authority to refuse refugees, tighten the statutory definition of what constitutes a refugee, and establish new security screening measures. House leadership has not yet indicated if the legislation will come to the floor.

The thrust of the House’s new legislation would mark a major change in the division of responsibilities between Congress and the executive branch in refugee admissions. It would also be a departure from the more recent refugee-related efforts by lawmakers, which were chiefly focused on halting the admissions of Syrian and Iraqi refugees. Just weeks after the violence in Paris, the House passed a bill—with broad bipartisan support—establishing new refugee screening and security measures so burdensome they would effectively halt Syrian and Iraqi admissions. While 47 House Democrats initially voted with Republicans in support of the legislation, broad Democratic opposition to the measure later emerged under pressure from refugee advocates and the White House. In December, a number of Republican lawmakers failed to fold the House’s refugee measure into a must-pass spending bill amid opposition from Senate Democratic leaders. The legislation died the following month on a procedural vote in the Senate when Democrats declined to provide the votes necessary to advance it.

While congressional debate over legislation targeting Syrian refugee admissions will likely continue, any measures put forth by either party to make substantial changes to the refugee program will be mostly symbolic. Republican-supported bills will almost certainly face insurmountable opposition from Democrats, especially in the Senate. Furthermore, President Obama has made clear his intention to veto any measure that would interfere with the admission of Syrian refugees or their resettlement.

Refugees and Security Concerns

Refugees are screened more rigorously than any other group of foreign travelers to the United States. The process involves background checks conducted by the Department of State, Department of Homeland Security (DHS), Federal Bureau of Investigations (FBI), various national defense and intelligence agencies, and an in-person interview. For Syrians, the process takes an average of 18-24 months. Of the 784,000 refugees admitted to the United States via the resettlement program since 9/11, five have been arrested on terrorism-related grounds—none charged with seeking to commit an attack inside the United States.

At the same time, screening refugees from Syria poses several unique challenges. The war-torn country lacks criminal and terrorist databases, and unlike in Iraq, the United States has not collected data and intelligence on the local population. FBI Director James Comey stated at a congressional hearing in October, “If we don’t know much about somebody, there won’t be anything in our data. I can’t sit here and offer anybody an absolute assurance that there’s no risk associated with this.” And at a House hearing in March, Homeland Security Secretary Jeh Johnson said, “In all candor, I do agree that the refugee flow coming out of Iraq and Syria represents a potential opportunity for terrorist organizations to move its members into other nations for potential attacks.”

Refugee streams may currently pose a greater security concern for Europe than the United States, however. More than 1 million migrants and asylum seekers arrived at EU land and sea borders in 2015 seeking admission without being screened or processed prior to arrival. Given the realities of geography, it is impossible for refugees from the Middle East and Africa to arrive spontaneously at U.S. borders on the scale of Europe’s current crisis. The vast majority from these regions come through the formal resettlement program, in which the government chooses the refugees it will accept from a large pool of cases. In conjunction with the United Nations High Commissioner for Refugees (UNHCR), the United States has chosen to prioritize discrete subsets of refugees deemed to be most vulnerable, such as certain members of religious or ethnic minority groups; lesbian, gay, bisexual, and transgender (LGBT) individuals; persons associated with the U.S. government; and trafficking victims.

Moreover, the United States admits a small number of Syrians each year—3,127 in total since the country’s civil war began in 2011. Of the total 69,933 refugees resettled in FY 2015, 1,682 were from Syria. And through March 2016, the United States had resettled 1,244 Syrians, far short of its fiscal year goal of 10,000. In contrast, 897,645 Syrian nationals applied for asylum in European countries between April 2011 and December 2015, one-quarter in Germany alone. And Canada, which has resettled 25,000 Syrian refugees in recent months, announced this week it would process another 10,000 applications from private sponsors seeking to resettle Syrians.

Syrian Refugees and the Election

Sharp differences have already emerged among Republican and Democratic presidential contenders. Following the Paris attacks, Democratic front-runner Hillary Clinton said that barring admission of Syrian refugees would undermine "who we are as Americans." The top Republican candidate, Donald Trump, has intensified his earlier calls for a ban on Syrian refugees, calling them a “Trojan horse” for ISIS. Fellow Republican contender Ted Cruz proposed the United States accept only Christian refugees from Syria. After the Brussels bombings, Cruz said: "We need to immediately halt the president's ill-advised plan to bring in tens of thousands of Syrian Muslim refugees. Our vetting programs are woefully insufficient."

Support for the resettlement program, which historically has been uncontroversial and until now generally received bipartisan support, may become more precarious. With the global number of refugees and displaced people now at a record 60 million, the United States will also face increasing international pressure to accept a larger share of the world’s refugees and displaced.

• Read the Alabama lawsuit
• Judge Godbey’s order in the Texas lawsuit
• Judge Pratt’s decision in the Indiana lawsuit
• Refugee Processing Center data
• U.S. Citizenship and Immigration Services (USCIS) information on the refugee system

National Policy Beat in Brief

Applications for Naturalization Rise as the 2016 Election Approaches. Applications for naturalization increased by 11 percent in fiscal year (FY) 2015 over FY 2014, and were 14 percent higher in the first quarter of FY 2016 compared to the same period a year earlier. Some immigrant advocates attribute the increase to a desire by immigrants to naturalize in order to vote in the 2016 presidential election. They also estimate as many as 1 million immigrants will apply for citizenship in 2016, roughly 200,000 more than recent yearly averages. Across the country, community-based organizations are offering advice and assistance in the application process, and the Mexican government has undertaken a campaign to help its nationals in the United States become U.S. citizens. Currently, more than 8 million lawful permanent residents are eligible to naturalize, with Mexican nationals constituting roughly 31 percent (2.7 million). The candidacy of Republican frontrunner Donald Trump, whose campaign has prominently focused on building border walls and deporting unauthorized immigrants, is believed to be driving the surge in naturalization applications.

• See USCIS N-400 application to naturalize data
• New York Times article on the surge among Latinos seeking citizenship
• Washington Post article on naturalization workshops hosted by Mexican consulates

U.S. Supreme Court Sets Hearing Date for United States v. Texas. On Monday April 18, the U.S. Supreme Court will hear oral arguments in United States v. Texas, a case brought by Texas and 25 other states challenging President Obama’s November 2014 executive action to create the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expand eligibility for the existing Deferred Action for Childhood Arrivals (DACA) program. If implemented, DAPA and the DACA expansion could potentially protect up to 4 million unauthorized immigrants from deportation. In anticipation of the hearing, the Republican-led House on a 231-186 vote approved an unprecedented measure granting Speaker Paul Ryan authority to file an amicus brief in the case on behalf of the entire legislative body. The high court will likely issue its ruling in June.

• The Hill article on April hearing for United States v. Texas
• CNN article on resolution granting Speaker Ryan the authority to file a legal brief in the case

DHS Publishes Final Regulations on STEM OPT. On March 11, the Department of Homeland Security (DHS) published a rule allowing international students with U.S. degrees in science, technology, engineering, or mathematics (STEM) the opportunity to remain in the country for 24 months of additional job training in their field under the STEM Optional Practical Training program (STEM OPT). The rule increases the extension available to STEM students on F-1 visas from 17 months to 24 months. The new rule will take effect on May 10, at which point eligible F-1 students with completed STEM degrees who have begun the regular, post-studies OPT will have the option of applying for a STEM OPT extension. The new STEM OPT regulations also give DHS the authority to conduct employer site visits to monitor compliance.

• National Law Review article on the new STEM OPT extension
• DHS overview of the 24-month STEM OPT extension

H-1B Cap Opens on April 1. U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions on April 1 in accordance with the FY 2017 cap set at 65,000 visas. The first 20,000 petitions filed for individuals with a U.S. master’s degree or higher are exempt from the cap. The H-1B visa program is used by U.S. businesses to employ foreign workers for positions requiring at least a bachelor’s degree. USCIS predicts the cap will be reached within the first five business days of the program, as it has in the last few years. If that happens, a computer-generated lottery system will randomly select 65,000 H1-B petitions that will be considered for adjudication.

• USCIS article on H-1B petitions for FY 2017

Cubans Continue to Arrive in Large Numbers to U.S. Border. As President Obama pursues efforts to normalize relations with the Castro regime, most notably through his historic visit to Cuba on March 21, Cuban arrivals to U.S. land ports continue to trend upwards. In FY 2015, Cuban arrivals at the U.S.-Mexico border increased 78 percent from the previous fiscal year. CBP’s field office in Laredo, Texas, which includes ports from Del Rio to Brownsville, saw more than 18,000 Cubans arrive between October 2015 and February 2016. At the current rate, Cuban arrivals to these ports will dramatically outnumber last year’s record of more than 28,000. The rise has been attributed to fears that the United States’ longstanding immigration policy, which offers uniquely advantageous treatment to Cuban nationals, may soon come to an end. Under the 1966 Cuban Adjustment Act, Cubans who enter the United States through ports of entry are preferentially permitted into the country and placed on a fast track to permanent residency.

• Texas Tribune article on Cuban arrivals to Texas border
• Guardian article on the preferential treatment of Cuban immigrants in Texas
• Pew Research Center article on recent trends in Cuban immigration to the United States

State and Local Policy Beat in Brief

‘Sanctuary City’ Bills Die in the Wisconsin, Maine State Legislatures. The Maine House of Representatives and the Wisconsin Senate have decided against taking up bills that would withhold funding from municipalities or counties that refuse to cooperate with U.S. Immigration and Customs Enforcement (ICE). A bill brought forward by Governor Paul LePage in Maine would have denied towns and municipalities state funding towards education and general assistance, as well as shared revenue payments, if they prohibit police from questioning a person’s immigration status or refuse to disclose immigration information to ICE. For engaging in similar practices, the Wisconsin bill would have allowed a community’s district attorney, sheriff, or attorney general to file a writ with the circuit court requiring compliance, ultimately reducing its shared revenue payments for the following year by between $500 and $5,000 for each day of noncompliance. Both bills were tabled on March 15.

• Portland Press Herald article on the Maine ‘Sanctuary City’ bill
• CAP Times article on the Wisconsin Senate’s decision to let the “sanctuary city” bill die
• CAP Times article on the Wisconsin legislation