Federal Judge Who Blocked Trump Travel Ban Will Rule on Plaintiffs Request to Double Number of Refugees in FY 2017

The Associated Press
The Associated Press

Judge Theodore Chuang of the U.S. District Court in Maryland, who issued a temporary restraining order on March 15 halting part of President Trump’s Executive Order 13780, has scheduled a hearing on March 28  to consider the merits of a request made by the plaintiffs in their complaint to revoke the section of that exec order that limited the maximum number of refugees authorized to enter the United States in FY 2017 to 50,000.

Several legal scholars and political commentators have questioned Chuang’s impartiality, in part because he served as deputy general counsel of the Department of Homeland Security in the Obama administration, as Breitbart reported.

In the very first sentence of his March 15 decision, Chuang makes an error of fact which may indicate how he will rule on March 28.

“On March 6, 2017, President Donald J. Trump issued an Executive Order which bars, with certain exceptions, the entry to the United States of nationals of six predominantly Muslim countries, suspends the entry of refugees for 120 days, and cuts by more than half the number of refugees to be admitted to the United States in the current year,” Judge Chuang writes. (emphasis added)

With this statement, Judge Chuang makes it clear that he accepts the argument made by plaintiffs HIAS (formerly Hebrew Immigrant Aid Society) and the International Refugee Assistance Project (IRAP) about refugee resettlement numbers in FY 2017. The plaintiffs argue that former President Obama’s September 22, 2016 “presidential determination” that he wanted Congress to fund the resettlement of up to 110,000 refugees in the United States in FY 2017 means that Congress must fund the resettlement of 110,000 refugees this fiscal year, and that President Trump has absolutely no say in the matter.

The facts and the law say otherwise.

In November, Donald Trump was elected president on a platform that called for a reduction in the number of refugees allowed to enter the United States, and a suspension of of refugees from Syria and other terror-prone countries into the United States, a significant event which plaintiffs HIAS and IRAP give no consideration in their complaint.

HIAS received more than $19 million in federal taxpayer funding to resettle 3,884 refugees in FY 2016, slightly more than 4 percent of the 84,995 refugees resettled in the country that year. HIAS has received a significant annual federal funding from the federal government for over three decades.

“Starting in the 2000s, HIAS expanded [its] resettlement work to include assistance to non-Jewish refugees, meaning we became involved in the aftermath of conflicts from Afghanistan, Bosnia, Bulgaria, Czechoslovakia, Ethiopia, Haiti, Hungary, Iran, Morocco, Poland, Romania, Tunisia, Vietnam, and the successor states to the former Soviet Union,” according to its website.

HIAS wants more money from the federal government in FY 2017, and claims in the complaint that it was promised that money by the Department of State.

“After the January 27 Order was issued, the U.S. State Department notified HIAS that its resettlement obligation for FFY 2017 would be slashed from nearly 4,800 to just over 2900 refugees. The financial losses to HIAS and its affiliate network—up to $2.2 million—will be crippling, especially for many of HIAS’s affiliates, which are heavily dependent on funding that flows through HIAS,” the complaint reads.

IRAP “organizes law students and lawyers to develop and enforce a set of legal and human rights for refugees and displaced persons,” and is funded by Fortune 500 companies, including 3M, General Electric, JP Morgan Chase, and Microsoft, and several dozen top level international law firms, including Davis Polk & Wardwell, Gibson, Dunn & Crutcher, Goodwin Proctor, Paul, Weiss, Rifkind, Wharton, & Garrison, Skadden Arps, and Ropes & Gray.

The argument advanced by plaintiffs HIAS (formerly Hebrew Immigrant Aid Society) and the International Refugee Assistance Project (IRAP), that asked Judge Chuang to tell both the President and Congress they must allow 110,000 refugees into the United States in FY 2017  is both unusual and misleading.

Judge Chuang, for unknown reasons, chose not to rule on this specific request from the plaintiffs as part of his March 15 decision.

The other federal judge who issued a similar ruling, also on March 15, Derrick Watson in Hawaii, specifically addressed the refugee limitation component of Executive Order 13780, and overruled it on grounds that were entirely political, and are likely to be reversed on appeal.

“Pursuant to the President’s congressionally delegated authority under 8 U.S.C. § 1182(f), the Executive Order purports to limit the number of refugees who may be admitted in fiscal year 2017 to 50,000, despite an earlier proclamation setting a limit of 110,000, in violation of the Refugee Act, 8 U.S.C. § 1157(a)(2),” the plaintiffs requested in the prayer for relief section of the complaint filed on March 10, four days after President Trump signed Executive Order 13780.

Plaintiffs HIAS and IRAP are arguing that Trump’s executive order limitation of refugees to 50,000 in FY 2017 was “pursuant to the President’s congressionally delegated authority under  8 U.S.C. § 1182(f),” which reads as follows:

Except as provided in subsection (b) of this section, the number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest. (emphasis added)

HIAS and IRAP fail to acknowledge in their complaint that the “earlier proclamation setting a limit of 110,000” refugees to be resettled in the United States in FY 2017 was not a Constitutionally authorized executive order, or even a “proclamation,” but instead was the statutory “presidential determination” for FY 2017 made by former President Obama on September 22, 2016.

Under the statute, the Refugee Act of 1980, such a “presidential determination” of maximum refugee resettlements must be made prior to the beginning of the next fiscal year (in this case October 1, 2016, the beginning of FY 2017) and merely sets a top limit of refugees authorized but not funded for the coming year.

Congress actually sets the funding level for the number of refugees to be resettled when it passes a budget for a fiscal year.

“The statutory consultation provision with regard to refugee admissions was the result of a compromise reached between the State Department and Congress and addressed to levels of consultation – one that would be part of the president’s annual determination of refugee admissions and another, that would be required in the event of an ’emergency refugee situation,’ ” an attorney familiar with the federal refugee resettlement program tells Breitbart News.

“In both instances as part of the consultation, the statute requires the cost estimate of moving and resettling these refugee admissions. There is nothing in the statute that requires consultation should the refugee admission numbers proposed in the annual determination, be decreased. In fact, the annual determination number is a proposed ceiling that hasn’t always been reached in prior fiscal years and for that matter,” the attorney adds.

“While the Refugee Act did not include a legislative veto with regard to the president’s annual determination of refugee admissions, neither did it cede any of its appropriations authority that could impact refugee admissions. Nor did Congress in passing the Refugee Act, in any way either explicitly or implicitly, constrain the authority delegated to the president by Congress under 8 U.S.C. 1182(f) to restrict the entry of any aliens, refugee or otherwise, if in his judgment, it is ‘detrimental to the interests of the United States,’ ” the attorney concludes.

In FY 2016, President Obama set a presidential determination of 85,000 refugees, and Congress agreed with that number, funding the settlement of 84,995 refugees in the FY 2016, the actual number of refugees that were resettled in the United States between October 1, 2015 and September 30, 2016.

But FY 2017 has been a different matter entirely.

After President Obama made a “presidential determination” of 110,000 refugees to be resettled in FY 2017, an increase of 29 percent from the FY 2016 level, Congress was unable to agree upon a FY 2017 budget. Instead, in October it passed a 10 week continuing resolution that funded everything in FY 2017 – including refugee resettlement – at the same level that it was funded in FY 2016. In the case of refugee resettlement, that meant refugee resettlement was funded during those 10 weeks at an annual rate of 85,000 refugees, or roughly 16,000 refugees between October 1, 2016 and December 9, 2016.

On December 10, 2016, Congress passed an additional continuing resolution that extended FY 2016 funding levels for FY 2017 until April 28, 2017. That funding applies to the refugee resettlement program, as well as most other federal programs.

Beyond April 28, there are currently no funds appropriated to resettle refugees in the United States for the balance of FY 2017. Congress may change that between now and April 28, but

The actual number of refugees resettled in the United States during the first 3 months and 21 days of FY 2017 between October 1, 2016 and January 21, 2017, the last day of the Obama administration, was 30,132, according to the Department of State interactive website, a rate that if continued through the entire fiscal year would result in a total of about 97,200 refugees resettled in the United States by September 30, 2017, the end of FY 2017.

Congress, however, has, of now, only appropriated funding sufficient to resettle 48,901 refugees in the United States in FY 2017, which is 1,099 below the limit of 50,000 President Trump established in Executive Order 13780.

Officials at the Department of State as well as all the refugee resettlement agencies–including HIAS–are well aware that their funding for FY 2017 is about to run out, and that circumstance is entirely unrelated at this time to President Obama’s September 22 “presidential determination” that set the maximum limit of refugees authorized to resettle in the United States in FY 2017 at 110,000.

As of March 23, 38,453 refugees have been resettled in the country, so under current budget appropriations, there is money to resettle only an additional 10,448 refugees in the country for the balance of FY 2017.

“Because HIAS is a non-profit resettlement organization that has a cooperative agreement with the federal government on a per-capita basis for each refugee served, and because the Department of State asked HIAS to increase its capacity from the 3,884 refugees resettled in federal fiscal year (“FFY”) 2016 to 4,794 refugees in FFY 2017, HIAS would be denied crucial funding as a result of the March 6 Order, which bans all refugees for 120 days, bars all entry for the six Muslim-majority countries for 90 days, and limits the number of refugees to be admitted in the current fiscal year at 50,000, which is less than half the number the Department of State told the resettlement agencies to collectively plan to resettle,” the complaint continues. (emphasis added)

“HIAS is a plaintiff in at least one of the lawsuits against the Trump Administration and I thought it might be a good idea to show you their complaints which seem to center around the idea that they were promised so many refugees (paying clients) this fiscal year and now they might not get them,” Ann Corcoran at Refugee Resettlement Watch says.
“Can you sue the federal government to get grants you were hoping for?” she asks.
“Shouldn’t there be a federal law disallowing non-profits receiving federal grants from working against the hand that feeds them?” Corcoran wonders.

“In FY 2015, the State Department, through the Bureau of Population, Refugees and Migration and the Office of Refugee Resettlement, spent more than $1 billion on these programs, which settled international refugees “vetted” by the United Nations High Commission on International Refugees in all 50 states and the District of Columbia. The federal government spent hundreds of millions of dollars more than that on refugees, however. The Department of Health and Human Services also provided a number of “entitlements” to these refugees,”  Breitbart News reported in 2015:

Much of this $1 billion in annual revenue goes to voluntary agencies (VOLAGs), several of which are Christian non-profits, such as Catholic Charities, Lutheran Immigration and Refugee Service, World Relief Corporation, Church World Service, and Domestic and Foreign Missionary Service of the Episcopal Church of the USA. (also referred to as Episcopal Migration Ministries), who are contracted on behalf of the government to help these refugees get settled in their new homes in America.

Five of the top nine VOLAGs are Christian non-profits. The other four are Hebrew Immigrant Aid Society (HIAS), International Rescue Committee, US Committee for Refugees and Immigrants, and the Ethiopian Community Development Council.

The HIAS/IRAP complaint on which Judge Chuang will hold a hearing on March 28 is all about continuing the flow of federal funds to these VOLAGs who are almost completely reliant on the taxpayers to pay for their operations, and their salaries.



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