State Resistance to Syrian Refugee Resettlement: What Can They Get Away With?

After the November 13th, 2015 terrorist attacks in Paris, political leaders in the United States immediately issued statements about domestic immigration policy. Though only one of the attackers in Paris carried a Syrian passport (which later proved to be fake),[1] domestic politicians focused on the resettlement of Syrian refugees. Within one week, governors from thirty-one states issued statements that they would either refuse to accept any Syrians or that additional requirements would need to be met before the state would accept them.[2] Phil Bryant, the governor of Mississippi said, “I will do everything humanly possible to stop any plans . . . to put Syrian refugees in Mississippi.” New Jersey governor and Presidential candidate Chris Christie echoed this request for a halt on all resettlement by saying that he “will not accept any refugees from Syria” because of the Paris attacks.[3] The “Give States a Chance Act of 2015”, a House bill introduced just five days after the Paris attacks and currently in committee, would honor these statements and give governors the ability to stop resettlement of a particular Syrian refugee if he/she “is not reasonably satisfied that the refugee does not post a security threat.”[4]

 

The federal government controls immigration policy

So barring the passage of restrictive legislation (which is unlikely to be approved by the current President), do governors have any influence beyond applying political pressure to steer federal immigration policy? As a general matter, no, the Constitution is clear in making the federal government supreme in matters over immigration.[5] State governments have no official say in whether or not the United States accepts refugees from a certain country and how many it will resettle. The specific portion of the Refugee Act that Syrian refugees would be brought in under (refugees in an “emergency situation”) gives the President discretion to set this number.[6] For fiscal year 2016, Obama has promised that 10,000 Syrians would be resettled across the states. [7]

 

States have found ways to disrupt the administration of resettlement

Though the federal government makes refugee policy, states can disrupt the delivery of resources to refugees, which could potentially force the federal government to change its policies to ensure state compliance. The act of “resettling”, or providing resources to refugees for a limited time window upon arrival, is carried out in part by the states. Funding for refugee resettlement is appropriated through Congress and administered by the Department of Health and Human Services through grants and contracts to a state-administered resettlement program or directly to non-profit organizations. In 2013, of the $623 million appropriated to the Office of Refugee Resettlement (ORR), $427 million of it went to the state programs for Cash and Medical Assistance, social services, and Targeted Assistance.[8]

Now, state officials are not working directly with refugee clients in such a way that they could ensure that federal funds do not go to Syrians. Designated non-profit organizations are the ones who receive the funding, then actually deliver English classes, job training, and cash for a set period of time following a refugee’s arrival. State government involvement is limited to administrative positions, with every state having a refugee coordinator who is ultimately accountable to the governor. The coordinator’s power is limited to overseeing contracts with designated non-profit service providers and making recommendations to ORR about the placement of refugees within the state. [9] Though a state refugee coordinator’s power is limited, it has been used by governors to halt or frustrate immigration in a couple of occasions in recent years.

 

Not releasing federal funding to organizations – Georgia

In late 2010, Governor Nathan Deal of Georgia chose to not issue contracts for English classes, job training, and academic programs for refugees, even though ORR had already appropriated the money specifically to the service agencies. So while the money was there, it could not be used once the service agencies lost their contracts with the state. Though Deal released the contracts one year later, had Deal held out longer, it’s theoretically possible that the nonprofits could have reached their limit and asked the federal government to stop sending refugees to Georgia.[10] For practical purposes, it would not be difficult to see why ORR would be persuaded to settle less refugees in a state that did not use its funding.

 

Persuading in-state social service organizations to not resettle – Indiana

Similarly, state governments can use the leverage that they have over the social service organizations to get refugees diverted to another state. Following the Paris attacks in November 2015, Indiana governor Mike Pence and the office holding the state refugee coordinator instructed social service organization Exodus Refugee Immigration to suspend and redirect the arrival of a particular Syrian family outside of the state. With less than a week before the arrival and fearing that the state would refuse to release funds like in Georgia, Exodus arranged for the family to resettle with another organization in Connecticut. Exodus Refugee Immigration and the ACLU went on to sue Pence for unconstitutionally singling out Syrian refugees.[11]

 

Could states be punished for refusing refugees from a particular area or making life difficult for the social service organizations?

The 1980 Refugee Act, which creates the scheme for resettlement under the Immigration and Nationality Act, provides for two conditions that can lead to some form of discipline. First, “assistance and services funded under this section shall be provided to refugees without regard to race, religion, nationality, sex, or political opinion.”[12] Second, a state is obligated to file reports and meet certain objectives set out annually by the director of the ORR as a condition of receiving appropriations.[13] So a state may see a reduction in funding if it wishes to discriminate against Syrian refugees but continue resettling refugees of other nationalities. However, a reduction or elimination of funding for resettlement may not bother a governor who is generally anti-immigration.

There is, in fact, no obligation on the part of states to resettle refugees at all.[14] While forty-nine states do, Wyoming simply does not have a state-administered resettlement program.[15] Theoretically, any and every state legislature could do the same and eliminate its program by legislative action. While a harsh policy of not settling any refugees is likely not politically feasible, if a significant number of states eliminated their programs, the federal government would be in a difficult position of only directing refugees to certain states or acceding to state demands for reform in order to bring back their state-administered programs.

 

Overall, it is possible but not likely that governors will successfully stop the resettlement of Syrian refugees into specific states. One option would be to get out the business of resettling refugees altogether by dismantling the state resettlement apparatus and not taking federal funding. Georgia and Indiana, on the other hand, have provided the blueprint for temporary and potentially targeted workarounds – preventing service agencies from using allocated federal funds and persuading agencies to turn down refugees. Hopefully the anger and fear caused by the Paris terrorist attacks will have subsided enough to make these obstructionist maneuvers unattractive to a majority of voters.

 


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] Ishaan Tharoor, Were Syrian Refugees Involved in the Paris Attacks? What We Know and Don’t Know, Washington Post (Nov. 18, 2015), https://www.washingtonpost.com/news/worldviews/wp/2015/11/17/were-syrian-refugees-involved-in-the-paris-attacks-what-we-know-and-dont-know/

[2] H.R. 4078, 114th Cong. (2015).

[3] Sarah Frostenson, Here’s a Map of Every State Refusing to Accept Syrian Refugees, Vox (Nov. 18, 2015), http://www.vox.com/2015/11/16/9746456/map-syrian-refugees-governors

[4] H.R. 4078, 114th Cong. (2015).

[5] Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

[6] 8 U.S.C. § 1157(a)(2) (2005).

[7] Letter from Robert Carey, Office of Refugee Resettlement, DCL-16-02, Resettlement of Syrian Refugees (Nov. 2015).

[8] Office of Refugee Resettlement, FY 2013 Annual Report to Congress (2013).

[9] Virginia Dept. of Social Services, Refugee Resettlement Program: State Plan FFY 2016 (2015).

[10] Melanie Nezzer, HIAS, Resettlement at Risk: Meeting Emerging Challenges to Refugee Resettlement in Local Communities (Feb. 2013), https://www.hias.org/sites/default/files/resettlement_at_risk_1.pdf

[11] Claire Gordon, Here’s Why the ACLU is Suing Indiana’s Governor, Fortune (Nov. 24, 2015), http://fortune.com/2015/11/24/aclu-syria-indiana-pence/

[12]8 U.S.C.A. § 1522(a)(5) (1997).

[13]45 C.F.R. 400.4 (Current through 2016).

[14] Office of Refugee Resettlement, FY 2013 Annual Report to Congress (2013).

[15] Office of Refugee Resettlement, State Programs Annual Overview, http://www.acf.hhs.gov/programs/orr/state-programs-annual-overview

 

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