E.g., 09/22/2017
E.g., 09/22/2017

The Supreme Court’s Opinion on the Revised Trump Executive Order: What Does It Mean For Refugees?

Commentary
June 2017

The Supreme Court’s Opinion on the Revised Trump Executive Order: What Does It Mean For Refugees?

Phil Roeder

Legal and political analysis of the Supreme Court’s decision on the Trump executive orders has largely focused on the part of the original and revised orders that imposed the travel ban on several predominantly Muslim countries. Less noticed have been the paragraphs at the end of the decision that discuss the orders’ suspension of the refugee resettlement program.

Recall that the second executive order suspended the overseas refugee program for 120 days and cut the overall number of refugee admissions for the current fiscal year from 110,000 to 50,000.  The Ninth U.S. Circuit Court of Appeal’s decision on June 12 affirmed, on statutory (that is, nonconstitutional) grounds, the lower court’s preliminary injunction that barred enforcement of both the visa and refugee provisions in the executive order. (Because of the lower court’s injunction, the refugee program has continued to operate this year.)

In ruling on the injunction issued by the district court and affirmed by the Ninth Circuit, the Supreme Court adopted the same formulation it applied to the injunction that barred enforcement of the visa ban provision.  It held:

An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.

The court restated its holding this way:

Section 6(a) [suspending the refugee resettlement program] may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may §6(b) [reducing the cap to 50,000]; that is, such a person may not be excluded pursuant to §6(b), even if the 50,000 person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.

What I want to suggest is that, in fact, the Supreme Court’s ruling means that refugee admissions can proceed as normal—that is, no refugee entering the United States through the regular resettlement program will be barred.  I say this because it seems plain that refugee resettlement agencies and their subcontracted local partners have a “bona fide relationship” with refugees entering under the usual resettlement program.

The vast majority of refugees resettled under the U.S. program are referred by the UN High Commissioner for Refugees (UNHCR) to offices of the Department of State overseas (some refugees with close family members in the United States may contact the State Department directly). The Department of Homeland Security (DHS) then adjudicates applicants’ claims, ensuring that they meet the necessary legal standards provided in U.S. law. For persons determined to be refugees, the State Department seeks a “sponsorship assurance” from one of the nine national resettlement organizations in the United States. When refugees come to the United States, they are welcomed by local partners of the national organizations that help them settle in a particular community. These nongovernmental agencies—national and local—are funded to carry out these resettlement tasks. Denying entry to persons adjudicated to be refugees by DHS overseas and approved by the State Department for admission would inflict hardship on the resettlement agencies, both financially and expressively (undercutting their mission of supporting refugee resettlement in the United States).

In an earlier part of its decision dealing with the visa ban, the Supreme Court acted to close a loophole before clever lawyers and advocates could open it. In ruling that the injunction barring enforcement of the visa ban would continue to apply on behalf of persons with a bona fide relationship to person or entity in the United States, the court stated that this would not be so for “someone who enters into a relationship simply to avoid [the visa ban].” It then provided an example: “A nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.” (P. 12.)

A similar example was not included in the refugee section of the opinion, perhaps because these kind of manufactured relationships are hard to imagine in the resettlement context.  The U.S. government selects refugees for admission, not the resettling agencies. There is no way that the resettlement organizations can try to “bootstrap” admissions in the manner suggested by the court.

There is thus a strong argument that the court’s decision—although it purports to grant the government’s application for stays of the injunctions “in part”—should not affect the entry of refugees under the U.S. resettlement program in any respect.