US Joins Syrian Refugee Case Against Pence

by Dave Stafford for www.theindianalawyer.com

A federal judge had tough questions Friday for the lawyer representing Gov. Mike Pence as he tried to make a case for state sovereignty in attempting to block the resettlement of Syrian refugees in Indiana. Oral arguments came on the heels of the U.S. Justice Department entering the case, claiming Pence’s actions discriminated on the basis of national origin.

Indiana Solicitor General Thomas Fisher argued Pence had a duty to exercise his chief role of protecting the safety of state residents, and that was what he was doing in November when he announced a temporary suspension of federal funding to assist resettlement of Syrian refugees. The recipient of those funds, nonprofit Exodus Refugee Immigration, sued seeking an injunction to prevent Pence from withholding the money. Among other things, the lawsuit chiefly argues refugee resettlement is the province of the federal government, so Pence and Indiana officials are preempted from interfering with that federal responsibility.

Judge Tanya Walton Pratt, in the U.S. Court for the Southern District of Indiana, noted refugees from Syria resettled in Indiana receive state assistance that Pence hasn’t suspended. She said his action merely blocks funds the U.S. government provides for job training and other cultural adjustment aid. “How does withholding these things provide for the safety of the citizens of Indiana?” she asked.

Fisher responded that Pence’s action was meant to remove any incentive to resettle future war victims from Syria. “It’s not meant to punish innocent people, obviously,” he said.

When Pratt asked Fisher about how long his action might last, Fisher said that depended on the ebb and flow of events in Syria. American Civil Liberties Union of Indiana Legal Director Ken Falk, representing Exodus, rebutted that such a position is the essence of his client’s case and demonstrates “how far the governor has intruded into foreign policy.”

“Indiana simply cannot insinuate itself into foreign policy, and that is exactly what it’s doing,” Falk argued.

Falk also said the state’s concerns about potential security risks posed by Syrian refugees whose backgrounds can’t be fully known are premised on selective quotes from congressional testimony of two government officials. Since then, enhanced screening methods have been introduced, he said, and in any event, the opinions of two officials don’t overcome the will of the federal government to resettle Syrian refugees in the U.S.

“The sole purpose of the governor’s action is to discourage the resettlement of Syrian refugees in Indiana,” Falk said. “If every state in America chose to do what Indiana did, refugee resettlement would grind to a halt.”

Exodus was harmed by Pence’s actions, and the agency meets the test for standing to represent in court the refugees it places in the state, he argued, noting refugees may be reluctant to assert their own rights “facing what appears to be a hostile state.”

Pratt asked Fisher about that characterization. “I don’t think it’s reasonable to conclude this is a hostile state,” he said, noting Pence’s action was meant as “a deterrent to resettling those who might be dangerous.”

Along with claims that Pence’s actions intrude on federal authority, Exodus and the Department of Justice say they constitute discrimination on the basis of national origin by targeting Syrian refugees.

Pratt noted courts have a role to play in finding discrimination, and she pressed Fisher repeatedly on whether Syrian refugees are a greater risk than those from nations such as Afghanistan, Iran and Iraq, who also are resettled in Indiana.

“The governor puts a lot of stock in what’s been said before Congress,” Fisher said, repeatedly returning to testimony last year of FBI Director James Comey, Director of Intelligence James Clapper and others who cast doubt on the ability to adequately check the backgrounds of Syrian refugees. “It is really a judgment call,” Fisher said.

But Exodus countered the officials’ concerns with numerous former national security officials who in court briefs vouched for the security of the screening and resettlement process and warned that obstructing refugee resettlement posed its own national security risks.

Friday’s hearing came just a day after the federal government filed a statement of interest in the case. The Department of Justice claimed Pence’s directive to suspend the resettlement of Syrian refugees was discrimination based on national origin barred under the Equal Protection Clause and Title VI of the Civil Rights Act.

Pence’s directive also violated the Refugee Act of 1980 and agreements the state made to abide by non-discrimination terms in the Refugee Social Service Program, the DOJ argues.

“Such discrimination would be justified only if Indiana could show that it was narrowly tailored to serve a compelling state interest, and Indiana cannot make that showing,” the Justice Department brief said.

Arguing the Syrian refugee crisis is the greatest in recent history, displacing some 12 million people, the federal government agreed to resettle at least 10,000 refugees in fiscal year 2016, the brief said, detailing at length the heightened screening process for those victims of war.

“No one doubts that preserving safety and security is a compelling interest. But Indiana cannot show that its discriminatory acts are narrowly tailored to advance its asserted interest. Denying services such as job training, child care, or English-language training to Syrian refugees is unlikely to advance any interest in public safety, and it is likely to harm those Syrian refugees without justification,” the U.S. brief says.

Fisher said that states historically have had a role to play in refugee resettlement, noting “there was a time when states would quarantine” refugees it might deem security risks. “Exodus says, ‘times have changed,’” he said. “Public safety is public safety.”

Fisher dismissed the DOJ’s statement of interest filing, saying the federal government could cut off funding for Indiana refugees if it believes the state is violating requirements to receive the money. The DOJ’s filing, he said, “doesn’t have any consequence other than its persuasive value.”

Nevertheless, Pratt gave Fisher and the state until Feb. 22 to reply to the government’s statement of interest in the case, Exodus Refugee Immigration Inc. v. Mike Pence et al., 1:15-CV-1858. Pratt said she would rule on the injunction motion by the end of the month.

During the nearly two-hour hearing, Pratt posed no questions to Falk.

After the hearing, Indiana Attorney General Greg Zoeller released a statement.

“Ultimately this legal dispute is not about refugees or Exodus as a grant contractor but instead about the State insisting the federal government provide the necessary assurance that individuals resettled here are appropriately vetted and pose no threat to public safety. Two policymaking entities – state government and the federal government – have parallel responsibilities for security and public safety.  We appreciate the opportunity to be heard by the court and to respectfully convey our clients’ legal arguments in this complex case,” Zoeller said.