HIAS, Inc. v. Trump, Civil No. PJM 19-3346

• Citation: 415 F.Supp.3d 669
• Decision Date: 15 January 2020
• Docket Number: Civil No. PJM 19-3346
• Parties: HIAS, INC., et al., Plaintiffs, v. Donald TRUMP, in his official capacity as President of the United States, et al., Defendants.
• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)

415 F.Supp.3d 669

HIAS, INC., et al., Plaintiffs,

v.Donald TRUMP, in his official capacity as President of the United States, et al., Defendants.

Civil No. PJM 19-3346

United States District Court, D. Maryland.

Signed January 15, 2020

Justin B. Cox, International Refugee Assistance Project, Atlanta, GA, Kathryn Shu-yeng Austin, Pro Hac Vice, Linda B. Evarts, Pro Hac Vice, Mariko Hirose, Pro Hac Vice, International Refugee Assistant Project, New York, NY, Melissa S. Keaney, Pro Hac Vice, International Refugee Assistance Project, Fair Oaks, CA, for Plaintiffs.

Bradley Philip Humphreys, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE

I. Introduction

HIAS, Inc., Church World Service, Inc., and Lutheran Immigration and Refugee Service, Inc. have sued President Donald Trump and three of his cabinet secretaries, seeking preliminary and permanent injunctive relief. They challenge Executive Order 13888, 84 Fed. Reg. 52,355 (Sept. 26, 2019) (Order), that they allege would give individual U.S. States and Local Governments the power to veto, by refusing to consent to, the resettlement in their respective jurisdictions of certain refugees from around the world. Plaintiffs are three of nine designated "Resettlement Agencies" that enter into annual agreements with the Federal Government to provide services to these refugees under the current refugee resettlement program of this country, as described more fully infra. Defendants, in their official capacities, are the President, Secretary of State Michael Pompeo, Secretary of Health and Human Services Alex Azar II, and Acting Secretary of Homeland Security Chad Wolf, all of whom have developed and/or are responsible for implementing the Order.

The case is at the Preliminary Injunction phase.¹

Defendants, represented by the U.S. Department of Justice, have filed an Opposition to the Motion for Preliminary Injunction to which Plaintiffs have replied. Numerous entities, with leave of Court, have filed briefs as amici curiae.² Oral argument by counsel for the parties has been held.

For the reasons that follow, the Court GRANTS the Motion for Preliminary Injunction, ECF No. 18, and reinstates the status quo immediately preceding the issuance of the proclamation of the Order on September 26, 2019, pending further order of the Court.

II. Who is a Refugee?

It is of critical importance to understand who a "refugee" is in the context of this case. For present purposes, a "refugee" has been defined under U.S. law, in pertinent part, as: "any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion". 8 U.S.C. § 1101(a)(42).³ See also 8 U.S.C. § 1522. This definition traces back to the definition of "refugee" found in the Statute of the Office of the United Nations High Commission for Refugees (UNHCR) [1950] and the definition in the 1951 Convention Relating to the Status of Refugees.⁴

"The 1967 Refugee Protocol incorporated the 1951 Convention's well-founded fear definition in its first article... [such that] [t]he United States owes certain obligations to refugees under international law by virtue of its ratification of the 1967 Protocol, and the [UNHCR], speaking for the international community, is the chief guarantor of these obligations".⁵ In 1980, in order to bring U.S. law into conformity with the Protocol, Congress enacted the Refugee Act of 1980.⁶ In its declaration of policies and objectives prefacing the Act, Congress:

(a) ... declares that it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands, including, where appropriate, humanitarian assistance for their care and maintenance in asylum areas, efforts to promote opportunities for resettlement or voluntary repatriation, aid for necessary transportation and processing, admission to this country of refugees of special humanitarian concern to the United States, and transitional assistance to refugees in the United States. The Congress further declares that it is the policy of the United States to encourage all nations to provide assistance and resettlement opportunities to refugees to the fullest extent possible. (b) The objectives of this Act are to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States, and to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted.

Refugee Act of 1980, Pub. L. No. 96-212 § 101, 94 Stat. 102.

"Refugees", then, in terms of the present case, comprise a special category of persons.⁷

These refugees do not apply for resettlement directly to the Country they hope to go to.⁸

In most cases, the UNHCR begins by identifying vulnerable individuals (often in conjunction with a U.S. embassy). A number of countries, including the United States, as signatories to the 1967 Protocol, have agreed to cooperate in determining which refugees designated by the UNHCR will be admitted for resettlement. Canada now accepts a greater number of refugees for resettlement under the Convention and Protocol than does the U.S., which historically has accepted the most. See U.N. High Commissioner on Refugees, Global Trends: Forced Displacement in 2018 (2019) at 32.

As of December 31, 2019, the Department of State reports that 30,000 refugees were resettled in the United States in Fiscal Year 2019. See Dep't of State, Bureau of Population, Refugees, and Migration, Refugee Processing Center, PRM Admissions Graph Dec. 31, 2019 (available at https://www.wrapsnet.org/admissions-and-arrivals/) (last visited Jan. 13, 2020).⁹ The main countries of origin of refugees who settled in the U.S. in FY 2018 were the Democratic Republic of Congo, Myanmar, and Ukraine. Dep't of State, Dep't of Homeland Security & Dep't of Health and Hum. Servs., Report to Congress: Proposed Refugee Admissions for Fiscal Year 2020 (2019) at 25. The top U.S. States accepting refugee resettlement in FY 2018 were Texas, Washington, Ohio, California, New York, and Arizona. Id. at 27.

III. A Brief Summary of Resettlement History

Anastasia Brown and Todd Scribner in the Journal of Migration and Human Security briefly summarize the history of the refugee settlement system in the United States:

World War II caused the displacement of millions of people throughout Europe. In response, the United States initiated a public-private partnership that assisted in the resettlement of hundreds of thousands of the region's displaced persons. For nearly 40 years after the War, the US commitment to refugee resettlement played out in an ad hoc fashion as it responded to emerging crises in different ways. During this period the government's involvement with resettlement became gradually intertwined with that of nongovernmental resettlement agencies, which came to play an increasingly vital role in the resettlement process. The budding relationship that began in the middle decades of the twentieth century set the foundation for an expansive and dynamic public-private partnership that continues to this day. The Refugee Act of 1980 solidified the relationship between resettlement agencies and the federal government, established political asylum in US law, and created the refugee resettlement program and a series of assistance programs to help refugees transition to life in the United States. This legislation marked a decisive turning point in the field of refugee resettlement.

Anastasia Brown and Todd Scribner, Unfulfilled Promises, Future Possibilities: The Refugee Resettlement System in the United States , 2 J. Migration and Hum. Security, No. 2, 101, 101 (2014).

IV. The Resettlement Process in the U.S.

After the UNHCR identifies and recommends a potential refugee for resettlement in the U.S., the U.S. undertakes its own vetting process (including, for example, administering medical tests and checking global fingerprint databases). The President, after consultation with Congress, determines the numerical ceiling for refugees each year (known as the "Presidential Determination"). See 8 U.S.C. § 1157(a)(2). For Fiscal Year 2020, for example, President Trump has set the ceiling at 18,000, see Presidential Determination on Refugee Admissions for Fiscal Year 2020, 84 Fed. Reg. 65,903 (Nov. 1, 2019), as compared to a ceiling of 110,000 set by President Obama in 2016, see Presidential Determination on Refugee Admissions for Fiscal Year 2017, 81 Fed. Reg. 70,315 (Sept. 28, 2016). Eligible refugees are then interviewed by officers of the U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS), and if deemed admissible, are resettled through what is known as the Refugee Admissions Program (RAP), which is jointly administered by a division within the Department of State (DOS) and the Department of Health and Human Services (HHS). See U.S. Citizenship and Immigration Services, Refugee Screening Fact Sheet (2018) (available at https://www.uscis.gov/sites/default/files/USCIS/Refugee%2C% 20Asylum%2C% 20and% 20Int%271% 20Ops/Refugee_Screening_and_Vetting_Fact_Sheet.pdf). See also Exodus Refugee Immigration, Inc. v. Pence , 838 F.3d 902, 903 (7th Cir. 2016) (Posner, J.) ("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...