Exodus Refugee Immigration, Inc. v. Pence, 16-1509

• Decision Date: 03 October 2016
• Docket Number: No. 16-1509,16-1509
• Citation: 838 F.3d 902
• Parties: Exodus Refugee Immigration, Inc., Plaintiff–Appellee, v. Michael R. Pence, in his official capacity as Governor of Indiana, et al., Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

838 F.3d 902

Exodus Refugee Immigration, Inc., Plaintiff–Appellee,

v.Michael R. Pence, in his official capacity as Governor of Indiana, et al., Defendants–Appellants.

No. 16-1509

United States Court of Appeals, Seventh Circuit.

Argued September 14, 2016

Decided October 3, 2016

Kenneth J. Falk, Attorney, Indiana Civil Liberties Union, Indianapolis, IN, Gavin M. Rose, Attorney, ACLU of Indiana, Indianapolis, IN, Omar C. Jadwat, Attorney, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, NY, Jan Peter Kubicki–Mensz, Attorney, ACLU of Indiana, Indianapolis, IN, for Plaintiff–Appellee.

Thomas M. Fisher, Attorney, Office of the Attorney General, Indianapolis, IN, for Michael R. Pence, Defendant–Appellant.

David Austin Robert Nimocks, Esq., Attorney, Office of the Attorney General, Austin, TX, Adam Samuel Lurie, Attorney, Linklaters LLP, Washington, DC, Efrat F. Fish, Charles T. Pollak, Linklaters, New York, NY, Marc D. Stern, Attorney, American Jewish Congress, New York, NY, Daniel Tenny, Attorney, Department of Justice, Civil Division, Washington, DC, for Amicus Curiae.

Before Posner, Easterbrook, and Sykes, Circuit Judges.

Posner, Circuit Judge.

The State of Indiana appeals from the grant of a preliminary injunction to a private agency named Exodus that assists refugees, some of whom are Syrian refugees, the state's target.

The regulation of immigration to the United States, including by refugees (people who have fled their homeland, and unable to return because of threat of persecution seek to relocate in a country in which they'll be safe), is a federal responsibility codified in the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq . That Act has been amended by the Refugee Act of 1980, which authorizes the President to determine, on the basis of “humanitarian concerns or ... the national interest,” how many refugees to admit each year. 8 U.S.C. § 1157(a)(2). The President fixed the number at 85,000 for fiscal year 2016, of whom at least 10,000 were to be persons coming to the United States from Syria, in recognition of the horrendous conditions in Syria resulting from that nation's civil war, now entering its sixth year.

Because of fear of terrorist infiltration—apart from the massive 9/11 terrorist attacks, Boston, New York, and San Bernardino (California) have been targets of terrorist attacks since 2001 by persons not born in the United States—all persons seeking to enter the United States as refugees are required to undergo multiple layers of screening by the federal government, following screening by the United Nations High Commissioner for Refugees, before they can be admitted to the United States. The process can take up to two years. Of course there can be no certainty that no terrorist will ever slip through the screen, elaborate though it is; for there has been terrorist infiltration of this country since 9/11 and there is a specific concern about Syrian refugees: many of them were born elsewhere, moved at some point to Syria, became caught up in the civil war there, sought to escape from that embattled nation in which hundreds of thousands of civilians have been killed, and are difficult to screen because little may be known about their life either in Syria or in their country of origin if different from Syria. (We'll refer to all of them as “Syrians,” though many of them were only transitory residents of Syria.) The governor of Indiana believes, though without evidence, that some of these persons were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here. No evidence of this belief has been presented, however; it is nightmare speculation.

A portion of the Refugee Act codified at 8 U.S.C. § 1522 and entitled “Authorization for programs for domestic resettlement of and assistance to refugees” allows the federal government to give states money to assist refugees to become integrated into American society. The particular aims of the statute are to “(i) make available sufficient resources for employment training and placement in order to achieve economic self-sufficiency among refugees as quickly as possible, [and] (ii) provide refugees with the opportunity to acquire sufficient English language training to enable them to become effectively resettled as quickly as possible.” 8 U.S.C. § 1522(a)(1)(A).

To receive the federal money a state must submit to the federal Office of Refugee Resettlement a plan for using the money to assist refugees to achieve economic self-sufficiency. 8 U.S.C. § 1522(a)(6). Indiana has submitted such a plan and it's been approved. Under the plan the state contracts with private resettlement agencies for the provision of social services to refugees, and the agencies are reimbursed by the state for the cost.

Another section of the Refugee Act provides that “services funded under this section shall be provided to refugees without regard to...