Biden’s Revocation of Trump Order Leaves Refugee Resettlement Opponents with Few Options

Bhutanese refugees lunch at a camp in Kathmandu before leaving for the United States on December 13, 2010. More than 100,000 refugees of Nepalese origin who left Bhutan after ethnic tensions in the early 1990s, have been living in exile in United Nations refugee camps in southern Nepal. US and …
PRAKASH MATHEMA/AFP via Getty Images

President Joe Biden’s revocation of President Donald Trump’s Executive Order 13888 requiring state and local consultation prior to the resettlement of refugees in any community may be an indication his administration plans to ignore a key requirement of The Refugee Act of 1980.

Federal courts currently seem unlikely to side with critics of the refugee resettlement program who have long argued that the Refugee Act of 1980 requires state and local consultation prior to the resettlement of refugees in a community. The Refugee Act of 1980 states:

Section 301 (c) (1)

In the conduct of the Coordinator’s duties, the Coordinator [of Refugee Affairs, as named by the president] shall consult regularly with States, localities, and private nonprofit voluntary agencies concerning the sponsorship process and the intended distribution of refugees.

Section 412 (a) (2)

The Director [of the Office of Refugee Resettlement], together with the Coordinator, shall consult regularly with State and local governments and private nonprofit voluntary agencies concerning the sponsorship process and the intended distribution of refugees among the States and localities. (emphasis added)

In 2020, a federal district court judge issued a temporary injunction banning the implementation of the Trump Executive Order 13888:

A federal judge in Maryland has blocked the Trump administration’s executive order allowing state and local governments to turn away refugees from resettling in their communities.

In September, President Trump announced that groups that help refugees find places to live must first get written consent from local and state jurisdictions before resettling them.

Immigration advocates challenged the executive order in federal court, calling it cruel and shortsighted.

U.S. District Judge Peter Messitte said the executive order “does not appear to serve the overall public interest.”

In January, a panel of three judges on the Fourth Circuit Court of Appeals, two liberals appointed by President Obama and one liberal appointed by President Clinton, upheld that ban on the Trump local consultation executive order:

Upon our review, we conclude that the plaintiffs have demonstrated that they are likely to succeed on their claim that the Order and Notice violate the carefully crafted scheme for resettling refugees that Congress established in the Refugee Act. We also conclude that the record supports the district court’s award of preliminary injunctive relief under the remaining factors of Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (the Winter factors). Accordingly, we hold that the district court did not abuse its discretion in granting the preliminary injunction, and we affirm the district court’s judgment…

Before the issuance of Executive Order 13,888, the federal government fulfilled its obligation to consult with states and localities by engaging in regular outreach to state and local governments and attempting to address any concerns…

The federal government addressed concerns raised by states or localities subject to the understanding that the states and localities could not reject resettlement of refugees in their jurisdictions. The resettlement agencies, in turn, conducted local refugee forums in which state and local government officials and community stakeholders participated in planning for refugee resettlement. The resettlement agencies reported the results of their outreach efforts to the federal government.

In September 2019, the provisions governing these procedures changed when the President issued Executive Order 13,888. In the Order, the President explained that “[s]ome States and localities . . . have viewed existing consultation as insufficient, and there is a need for closer coordination and a more clearly defined role for State and local governments in the refugee resettlement process.” Order § 1. The President expressed the view that state and local governments were in the best position to evaluate whether they had the resources necessary for “sustainable resettlement” of refugees. Id. The President thus concluded that with “limited exceptions,” the federal government “should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees.” Id. (emphasis added) (the consent requirement). (emphasis added)

Breitbart News reported on President Biden’s February 4 executive order:

That order also revoked two executive orders  and one presidential memorandum signed by President Trump:

(a) Executive Order 13815 of October 24, 2017 (Resuming the United States Refugee Admissions Program With Enhanced Vetting Capabilities), and Executive Order 13888 of September 26, 2019 (Enhancing State and Local Involvement in Refugee Resettlement), are revoked.

(b) The Presidential Memorandum of March 6, 2017 (Implementing Immediate Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits, Ensuring Enforcement of All Laws for Entry Into the United States, and Increasing Transparency Among Departments and Agencies of the Federal Government and for the American People), is revoked.

Former President Trump’s March 6, 2017  Executive Order 13888, “Enhancing State and Local Involvement in Refugee Resettlement,” reads, in part:

Section 1. Purpose. In resettling refugees into American communities, it is the policy of the United States to cooperate and consult with State and local governments, to take into account the preferences of State governments, and to provide a pathway for refugees to become self-sufficient. These policies support each other. Close cooperation with State and local governments ensures that refugees are resettled in communities that are eager and equipped to support their successful integration into American society and the labor force.

The Federal Government consults with State and local governments not only to identify the best environments for refugees, but also to be respectful of those communities that may not be able to accommodate refugee resettlement. State and local governments are best positioned to know the resources and capacities they may or may not have available to devote to sustainable resettlement, which maximizes the likelihood refugees placed in the area will become self-sufficient and free from long-term dependence on public assistance. Some States and localities, however, have viewed existing consultation as insufficient, and there is a need for closer coordination and a more clearly defined role for State and local governments in the refugee resettlement process. My Administration seeks to enhance these consultations.

Section 6(d) of Executive Order 13780 of March 6, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), directed the Secretary of State to determine the extent to which, consistent with applicable law, State and local jurisdictions could have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and to devise a proposal to promote such involvement.

I have consulted with the Secretary of State and determined that, with limited exceptions, the Federal Government, as an exercise of its broad discretion concerning refugee placement accorded to it by the Constitution and the Immigration and Nationality Act, 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 (Program).

Breitbart News reported in September 2019 when President Trump signed Executive Order 13888:

President Donald Trump is giving states, cities, counties, and towns the legal power to prevent groups from dumping foreign refugees into their communities.

The policy will allow residents to block the stealthy efforts by refugee resettlement groups to direct new refugees into communities which are selected by local elites. This refugee dumping is usually done at the request of local employers, such as slaughterhouses, that want new workers to replace ones who quit because of low wages, harsh conditions, and health hazards.

Trump’s Executive Order 13888 fulfilled a promise he made on the campaign trail days before the November 2016 election, as Breitbart News reported at the time:

“A Trump administration will not admit any refugees without the support of the local community where they are being placed,” Republican presidential nominee Donald Trump told an enthusiastic crowd of more than 5,000 who greeted him at the Sun Country Airlines hangar of the Minneapolis St. Paul International Airport on Sunday.

Trump’s statement marked the first time he explicitly declared that if he is elected president, refugees will not be resettled “without the support of the local community where they are being placed.”

The Refugee Act of 1980’s “consultation clause” requires that the federal government and the director of the Office of Refugee Resettlement must consult with elected officials of state and local jurisdictions prior to the placement of refugees in their jurisdictions.

The Obama administration, however, has routinely failed to comply with this requirement. Only in the past several years have officials with the Office of Refugee Resettlement regularly communicated with states about refugees, but those communications typically come after the arrival of the refugees, rather than in advance of their arrival, as the Refugee Act of 1980 requires.

While the Refugee Act of 1980 requires the federal government to consult with local governments as well as state governments, Breitbart News has reported on several local governments who say they’ve never received any communications from the federal government before or after the resettlement of refugees.

Two states, Alabama and Texas, are suing the federal government for placing refugees in their jurisdiction without complying with the Refugee Act of 1980’s “consultation clause.”

The state of Alabama’s lawsuit, filed in 2016, was dismissed by a federal magistrate on the grounds that Alabama did not have a private right of action to enforce the Refugee Act of 1980:

Plaintiffs assert three claims for declaratory and injunctive relief against Defendants under the Declaratory Judgment Act, the Refugee Act, the Administrative Procedures Act, and the Mandamus and Venue Act. As discussed below, each of Plaintiffs’ three claims fails to state a claim for which relief may be granted because (1) there is no private right of action to enforce the Refugee Act, (2) the consultation required is not an agency action under the Administrative Procedures Act, and (3) Plaintiffs do not have a clear right to relief and Defendants do not owe them a clear ministerial duty. Accordingly, Defendants’ motion to dismiss is due to be granted. Because some understanding of the Refugee Act is helpful to understanding the issues raised by Defendants’ motion, the court will first briefly discuss the statutory background of the Act before addressing Plaintiffs’ claims and Defendants’ motion to dismiss.

On March 6, 2017, President Trump signed Executive Order 13780 , which among other things, required local and state consultation:

(d) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of State shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.

Alabama withdrew its lawsuit subsequent to the release of that executive order, on the grounds it made the lawsuit unnecessary.

Within hours of his inauguration on January 20, President Biden issued a proclamation revoking Executive Order 13780. His executive order of February 4 revoked Executive Order 13888.

With President Biden’s revocation of President Trump’s Executive Order 13780 and Executive Order 13888, and with a Biden administration Department of Justice unlikely to undertake litigation that would support challenges to the resettlement of refugees in communities without state and local consultation, opponents of such resettlement have few options open to them beyond renewed challenges to those policies by state governments in federal courts. Those courts, at both the district and appeals court level, have not been sympathetic to their arguments.

The Supreme Court is not yet in the picture at this stage of litigation concerning refugee resettlement. All the lawsuits against Trump’s executive orders revoked by President Biden will now become moot and be dismissed, and a lawsuit has yet to be filed by any state or local government on Biden’s revocation of Trump’s executive orders.

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