Refugee Resettlement — What’s Happening and What is Lawful

The recent violent attacks in Paris, Beirut, and California have traumatized and saddened the world, including the United States. These despicable acts of violence have created very real concerns for our nation and our leaders, and have focused much public attention — media and otherwise — on immigrants and refugees coming to our shores. The U.S. House of Representatives overwhelmingly passed a bill that would effectively end the resettlement of Syrian and Iraqi refugees in the United States; some 31 state governors vowed to refuse the admission of Syrian and Iraqi refugees; and a Texas lawsuit was filed against the federal government to halt refugee resettlement there. The proponents of these measures say one refugee terrorist is one too many. But, what are the facts and what is the law?

First, in the history of the U.S. refugee program, there has not been a single reported act of terrorism committed by a refugee. In fact, a recent study conducted by a Syracuse University research group, TRAC (Transactional Records Access Clearinghouse), found that the removal of a noncitizen (asylum seekers, nonimmigrants, and immigrants) through the immigration courts on the grounds of terrorism is extremely rare. Of the 176,397 removal orders sought by DHS in FY2015, two were based on terrorism concerns. In FY2014, DHS sought only three such orders. TRAC reports these extremely low numbers are consistent with the numbers observed during the last four years of the Bush Administration.

Second, refugees, unlike asylum seekers, are by definition individuals outside of the United States who are seeking protection from persecution. The process that they undergo in order to be deemed eligible for resettlement in the United States is thorough and extensive. They are vetted more rigorously than any other immigrant or nonimmigrant. And, this vetting is conducted while they are still overseas. They are screened by national and international intelligence agencies. Fingerprints and other biometric data are checked against terrorist and criminal databases. They are interviewed several times over the course of the vetting process, which takes 18–24 months and often longer. While refugees may not have had proper documentation when this vetting process begins because of the circumstances of their home country departure, the backgrounds of those who successfully pass the screening process and are resettled here are known by the government.

Significantly, a bipartisan group of national policy experts — generals, national security advisors, and secretaries of defense, state, and homeland security, including former Secretaries of State Madeline Albright and Henry Kissinger — expressed opposition to measures that would effectively end the refugee resettlement program for Syrians and Iraqis. Here are some excerpts from their poignant letter:

“We believe that America can and should continue to provide refuge to those fleeing violence and persecution without compromising the security and safety of our nation. To do otherwise would be contrary to our nation’s traditions of openness and inclusivity, and would undermine our core objective of combating terrorism.

“The process that refugees undergo in order to be deemed eligible for resettlement in the United States is robust and thorough. They are vetted more intensively than any other category of traveler, . . . .

“Given the stringent measures in place, we are especially concerned by proposals that would derail or further delay the resettlement of Iraqis who risked their lives to work with the U.S. military and other U.S. organizations. . . . The United States has a moral obligation to protect them.

“We must remain vigilant to keep our nation safe from terrorists, whether foreign or homegrown, and from violence in all its forms. At the same time, we must remain true to our values. These are not mutually exclusive goals. In fact, resettlement initiatives help advance U.S. national security interests by supporting the stability of our allies and partners that are struggling to host large numbers of refugees.

“Refugees are victims, not perpetrators, of terrorism. Categorically refusing to take them only feeds the narrative of ISIS that there is a war between Islam and the West, that Muslims are not welcome in the United States and Europe, and that the ISIS caliphate is their true home. We must make clear that the United States rejects this worldview by continuing to offer refuge to the world’s most vulnerable people, regardless of their religion or nationality.”

Moreover, some 400 legal, faith, labor, refugee, and humanitarian aid organizations, as well as civil and human rights groups, wrote a similar letter. They likewise urge members of Congress to support the U.S. refugee resettlement program and to oppose any policy riders that would stop, pause, or defund resettlement of Syrian refugees.

States cannot categorically deny federally funded benefits and services to Syrian refugees. It’s basically against the law. In late November, the Department of Health and Human Services’ Office of Refugee Resettlement (ORR) released a “Dear Colleague Letter,” advising that states may not deny ORR-funded benefits and services to refugees based on a refugee’s country of origin or religious affiliation. “Accordingly,” it advised, “states may not categorically deny ORR funded benefits and services to Syrian refugees.” A state that does so would not be in compliance with various laws and their own assurances, and could be subject to enforcement action. In addition, the Civil Rights Act of 1964 prohibits discrimination on the bases of race and national origin in all programs or activities that receive federal financial assistance. Thus, it is impermissible to deny federally funded benefits to refugees who otherwise meet the eligibility requirements.

Nevertheless, in early December, the state of Texas filed a lawsuit in federal district court against the federal government and the International Rescue Committee to block the resettlement of refugees from Syria in the state. The Texas Human Service Commission argued, among other things, that the federal government is violating the 1980 Refugee Act, which requires the federal government to communicate “regularly” with state and local governments and nonprofits regarding refugee resettlement. This is a creative reading of the Refugee Act, an interpretation that does not take into account the federal government’s ultimate authority over immigration. And, the federal government is the sole entity responsible for screening and accepting refugees. (Though procedures vary at the state level, in many instances the states simply direct the federal government to in-state charities that provide or facilitate the majority of essential services for the refugees once they land in the U.S.) The district court denied Texas’s application for a temporary restraining order (TRO), finding that the state failed to establish that there was a substantial threat of irreparable injury posed by the Syrian refugees.

Between October 1, 2011, and October 31, 2015, the U.S. admitted 2,070 Syrian refugees. None committed any terrorist act.