The following presentation was made by Immigration Attorney Thomas W. Goldman to the Tiger Bay Club in Bradenton, FL March 3, 2016.
The authority of the President to send refugees to Florida and other states is based on three laws:
- International law
- The Refugee Act of 1980
- Supremacy Clause of the US Constitution
In 1951, the United Nations adopted the Convention on Refugees, and the US was a signatory to this treaty. It did not require the different countries to take refugees, but the goal was that countries would do so. The United States has taken in refugees every year.
At the present time, there are as many as 60 million refugees around the world. I talked with a director of a resettlement agency in St. Petersburg, Florida and he said that when he started working 13 years ago, there were 10 million refugees.
The second law if the Refugee Act of 1980. Congress passed this law in order to set out a permanent procedure by which refugees would be admitted to the US. The Act places the responsibility on the President to determine how many refugees will be admitted and where they will be sent.
One requirement is that the President consult with the State and local government and private agencies before making this decision .
The third law if the Supremacy Clause of the US Constitution, which says that the federal government and the US Constitution takes precedence over state law and the state constitution.
The US Supreme Court in 1941 held that immigration law if a federal matter rather than a state matter. This was the case of Hines v. Davidowitz, and this was restated in the case of Arizona v. US in 2012.
Going back to the requirement of the President to consult with the states, the reason is to be sure that the services will be available in a particular area, and there will be job opportunities for the refugees.
Some states like Idaho, have in the past welcomed refugees for years because they want the workforce. With a population of 1.6 million, they have taken in 30,000 refugees from 53 countries since the 1970’s, mostly from Africa, Asia and the Middle East. But Idaho is one of the 31 states that requested the Administration to stop the placement of Syrian refugees until it could be assured that security issues were resolved.
Florida objected as well, but I believe now has accepted the fact that the federal government can send refugees to the state. Florida accepts money from the federal government for the resettlement program; the money go to the Florida Department of Children & Families which is the Refugee Coordinator.
At least two lawsuits have been filed. In December, 2015, Texas filed a lawsuit saying the federal government failed to consult with the state prior to resettling refugees in Texas, based on the Refugee Act of 1980. The first round was won by the federal government when a federal judge rejected the state’s request for a temporary restraining order. Syrians are now being sent to Texas.
The second suit was filed by the State of Alabama, on the same grounds, but with a twist. It is arguing that the consultation must be specific, not general. In other words, the federal government can’t simply send general information to the National Governor’s Association. Alabama wants the individual files of all of the refugees being sent to the state so it can make an independent determination of security risks. It wants the medical files as well.
Just last week, the Tennessee Senate passed a resolution to require a state lawsuit to stop refugees being placed in Tennessee. But it’s argument is based on the 10th Amendment which states that powers not delegated to the federal government are left to the State – and since Tennessee withdrew from the Refugee Resettlement program in 2008, the federal government has continued resettlement in the state. The state is arguing that the federal government is overstepping its authority because resettlement is causing the state to incur cost by providing social services.
Even if it is successful, the suit will only apply to refugees being initially placed within the state. Once a refugee is resettled, there is freedom to travel to any other state and receive social services.
This is a fast moving area and other states like Indiana have approached it differently. Rather than filing a lawsuit, the Governor issued an order that barred state agencies from helping Syrian refugees resettle in Indiana. Four days ago, a federal judge blocked the order because it “clearly discriminates” against refugees from Syria. Four Syrians were placed in Indiana in January, with plans to settle an additional 200 this year.
More than two dozen states have taken similar action to withhold funds. The governor of Indiana is going to appeal.
One last thought. It is important to understand the difference between a refugee and an asylum seeker. A refugee is a person who has left his or her home country and is unwilling or unable to return due to persecution based on race, religion, political views or belonging to a certain social group. They are outside the United States.
If a person comes here legally through the visa process, or illegally, an asylum application may be filed for the same reasons. The difference is that for all of those who do not file an asylum application, there is no vetting process. About 30% of those who enter the southern border are not from Mexico.
Between 2012 and 2014, 5,280 Syrians filed asylum applications, and 1,986 were granted.
- Syrians have other relief, once they make it to the US.
- If they were here on March 29, 2012 they were granted TPS
- Once they enter the US, an asylum application has to be filed within one year, but if they are late they can file for withholding of removal or protection under the Convention Against Torture
- If they entered illegally and stay here for 10 years and marry a permanent resident or citizen or have children in the US, they can ask a judge for cancellation of removal
- If they lose their case and are ordered deported, they can appeal. The process may take two to three years. If they lose the appeal, many of them don’t go back.
- If ICE finds them and they have a deportation order, they can ask ICE to let them stay in the US. (Prosecutorial Discretion)
- If they entered before the age of 16, they may be eligible to stay based on an Executive Order.
Hopefully, this will help give you an overview of the Syrian refugee issue from a legal point of view.