Supreme Court Decision Creates Bureaucratic Mess in Refugee Admissions Program

Refugees F. BenschReuters
F. Bensch/Reuters

Monday’s unanimous decision by the Supreme Court to partially restore the temporary travel and refugee bans contained in President Trump’s Executive Order 13780 ensures that the federal Refugee Admissions Program will be entangled in a bureaucratic mess for the remainder of FY 2017, and probably longer.

In the per curiam ruling in the two cases of Trump v. International Refugee Assistance Project on application for stay and petition for writ of certiori to the U.S. Court of Appeals for the Fourth Circuit, and Trump v. Hawaii  on application for stay and petition for writ of certiori to the U.S. Court of Appeals for the Ninth Circuit, the Court said:

The Hawaii injunction extends beyond §2(c) to bar enforcement of the §6(a) suspension of refugee admissions and the §6(b) refugee cap.

In our view, the equitable balance struck above applies in this context as well.

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 Government’s application to stay the injunction with respect to §§6(a) and (b) is accordingly granted in part.

Section 6(a) 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); 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

“I agree with the Court that the preliminary injunctions entered in these cases should be stayed, although I would stay them in full,” Justice Thomas wrote in his partially concurring, partially dissenting statement, with which Justices Alito and Gorsuch agreed.

“I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed,” Thomas continued:

The Government has also established that failure to stay the injunctions will cause irreparable harm by interfering with its “compelling need to provide for the Nation’s security.”
Finally, weighing the Government’s interest in preserving national security against the hardships caused to respondents by temporary denials of entry into the country, the balance of the equities favors the Government. I would thus grant the Government’s applications for a stay in their entirety.
Reasonable minds may disagree on where the balance of equities lies as between the Government and respondents in these cases.

It would have been reasonable, perhaps, for the Court to have left the injunctions in place only as to respondents themselves.

But the Court takes the additional step of keeping the injunctions in place with regard to an unidentified, unnamed group of foreign nationals abroad.

No class has been certified, and neither party asks for the scope of relief that the Court today provides.

“Moreover, I fear that the Court’s remedy will prove unworkable,” Thomas concluded in his dissent:

Today’s compromise will burden executive officials with the task of deciding—on peril of contempt— whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country.

The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid §2(c)” of Executive
Order No. 13780.

And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now—unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.

HIAS, the voluntary agency formerly known as the Hebrew Immigration Aid Society and a plaintiff in the IRAP v Trump case decided in their favor by a Maryland federal district judge on March 15 and the 4th Circuit Court of Appeals, which the Trump administration subsequently appealed that led to Monday’s per curiam decision, praised the  SCOTUS decision.

HIAS President and CEO Mark Hetfield said in a statement:

HIAS welcomes the ruling as an affirmation that the President does not have unfettered unchecked authority to bar refugees from the United States without evidence to justify such action. We also welcome the ruling as confirmation that there are limits to the President’s ability to bar non-citizens from the United States based on unsubstantiated presumptions relating only to their nation of birth.

We are pleased that those with family and other ties to the United States, including refugees fleeing violence and persecution, will not be subject to the arbitrary exclusion of the Executive Order. The Administration appealed to the Supreme Court on the grounds that the orders upheld by the Ninth and Fourth Circuits would cause ‘irreparable damage’ to the United States. We feel, however, that, with this Supreme Court ruling, these shameful executive orders may once again cause ‘irreparable damage’ to America’s standing in the world as a beacon of welcome and human rights, and to the United States’ tradition of welcoming refugees and immigrants in a way that we have not seen in over fifty years.

For the American Jewish community, this hearkens back to our darkest days of the 1920s to 1940s, when America last broke with its tradition of welcoming refugees by imposing discriminatory and tragic admissions criteria based entirely on where people were born. The results of those discriminatory laws and policies, particularly for those trying to escape the Nazi genocide in Europe, were tragic. The result of this executive order to allow arbitrary criteria to turn away refugees and other non-citizens will also have tragic results, demonstrating that we have forgotten the lessons we learned. The Fourth and Ninth Circuit courts recognized that neither the Constitution nor the laws of this country permit the President to exercise such potentially harmful authority without evidence to justify the tragedies that will inevitably result. We hope that, in the fall, the Supreme Court will recognize the same.

HIAS is one of the nine major voluntary agencies (VOLAGs) that are paid more than $1 billion a year by the federal government to resettle refugees in the United States.

Critics of the federal refugee resettlement program, however  agreed with Thomas’s dissent.

“On the surface it might appear that the Trump Administration has won an important victory in the Supreme Court which ruled just a few hours ago on the so-called “travel ban” Executive Order, but in my view the Court has created an enormous bureaucratic mess, not to mention having re-written Refugee law,” Ann Corcoran writes Monday at Refugee Resettlement Watch. She continues:

The gist of the decision is that Trump (the President) can halt immigration from the six (although incomplete list) of terror-producing countries unless the wannabe entrant (for any purpose) “can credibly claim a bona fide relationship with a person or entity in the United States.”

So, I guess that means the court has decided in advance who the potential terrorists are and that they can’t possibly be someone who has a relative here already or is coming to college at the University of Hawaii (or any college) or connected to any “entity” (a VOLAG perhaps!).

Of greater interest to me is that, although Trump can have his refugee admissions ceiling of 50,000 (remember CEILING is not a target), but the ceiling can be surpassed (says the majority opinion) in the remaining months of this fiscal year (up to September 30th) if the wannabe refugees have relatives here (what if 10,000, 20,000 and so forth have relatives here!).

Corcoran says that, “in effect the Supreme Court (led by Chief Justice Roberts) has just rewritten the Refugee Act of 1980.”

“The Act allows the President to exceed his designated ceiling (and here they agree it is 50,000!) only by making a case for an emergency and consulting with Congress. Well, forget that! Looks like the Supreme Court is now determining the number of refugees to be admitted to America,” Corcoran concludes.

An attorney familiar with the federal refugee resettlement program tells Breitbart News the decision will lead to “bureaucratic confusion.” The attorney says:

Today’s ‘per curiam’ decision shows us that the Supreme Court is willing to stir the pot of bureaucratic confusion in order to appease their most liberal and left-leaning judges. The Court’s decision relies on the same faulty reasoning as the lower courts – that “a credible claim of a bona fide relationship” may warrant overriding the President’s executive authority to exclude certain aliens who are deemed to pose a threat to national security.

It is not clear what constitutes a “bona fide relationship,” how and whether the bona fides can be vetted and what claim could be raised should the individual in question be denied entry after examination. Recall, in 2008, what was described as “massive fraud” associated with entrance of Somali refugees relying on the P-3 family reunification program was exposed through required DNA testing and the program was suspended. Predictably, the federal refugee resettlement contractors objected the loudest to the testing.

Under the Obama administration certain standards related to providing “material support” were loosened and then last year, an internal DHS memo directed to then Secretary Jeh Johnson stated pretty clearly that there were plenty of avenues of fraud embedded in the refugee program and specifically, as to the admission of Syrian refugees, it said that Obama’s decision to increase the number of admissions, “ignores warnings from his own national security officials that Syrians cannot be adequately vetted to ensure terrorists are not admitted. Revelations about fraud, security gaps, and lack of oversight have demonstrated that the program is creating national security risks.

By this measure, either of President Trump’s Executive Orders creating only a temporary, time-limited suspension of the program, were perfectly reasonable. The district and circuit courts didn’t respect the law or rule on the law, relying instead on a political agenda. It was the Supreme Court’s job to correct them which in my opinion, they failed to do.

As of Sunday, June 25, 48,856 refugees have been resettled in the United States so far in FY 2017, according to the State Department’s interactive website.

Intepretation of Monday’s ruling is now left to bureaucrats at the Department of State’s Bureau of Population, Refugees, and Migration, whose leadership, as Breitbart News has reported,  is largely staffed by Obama administration holdovers.


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