Policy Analysis | January 2016

State Authority to Admit Refugees: Background and Recent Developments

Stephanie Noble

State Authority to Admit Refugees: Background and Recent Developments

The issue of state authority in refugee resettlement was largely unaddressed prior to November 2015, when security concerns, stemming from Syrian-linked terrorist attacks in Paris, led 31 governors to restrict refugee resettlement in their states. Historically, refugee admissions have been a federal issue, as it relates to immigration and foreign affairs. The Immigration and Nationality Act, amended by the Refugee Act of 1980, establishes the process by which the federal government sets refugee priorities.

Total Refugee Arrivals Syrian Refugee Arrivals
2012 2013 2014 2012 2013 2014
Alabama 145 129 107 1 0 0
Arkansas 10 7 7 1 0 0
Florida 2244 3620 3519 0 0 6
Georgia 2520 2710 2694 0 2 6
Kentucky 1452 1603 1849 0 1 1
Louisiana 187 223 211 0 0 0
Mississippi 8 3 7 0 0 0
Missouri 1065 1268 1392 0 0 0
North Carolina 2110 2377 2443 0 0 11
Oklahoma 233 300 389 0 0 0
South Carolina 135 148 121 0 0 0
Tennessee 1236 1550 1467 2 1 0
Texas 5923 7475 7214 1 8 10
Virginia 1341 1472 1310 3 3 6
West Virginia 19 25 28 0 0 1
Region Total 18694 22910 22758 8 15 41
United States Total 58238 69926 69986 35 48 132

Table 1. Total Refugee Arrivals in SLC States, by Fiscal Year. Source: United States Office of Refugee Resettlement.

Presidential Authority to Admit Refugees

Under the federal Refugee Act of 1980, it is the duty of the president to determine the number of refugees who can be admitted to the country in each fiscal year. This number is to be decided prior to the start of the fiscal year and after “appropriate consultation” among cabinet-level representatives and members of the House and Senate Judiciary Committees. The president can adjust this number if, after consultation, the president determines:

    (1) An unforeseen refugee situation exists; (2) The admission of certain refugees in response to this situation is justified by grave humanitarian concern or is otherwise in the national interest; and (3) Admission of those refugees cannot be accomplished under the pre-determined number.
If these determinations have been made, then the president can fix a number of refugees to be admitted during the succeeding period, not to exceed 12 months. Those admissions are to be allocated among refugees of special humanitarian concern to the United States and in accordance with a determination made by the president after appropriate consideration.

Under the Act, "appropriate consultation" is defined as, discussion in person by designated Cabinet-level representatives of the president with members of the Committees on the Judiciary of the Senate and of the Ho use of Representatives to review the refugee situation or emergency refugee situation, to project the extent of possible participation of the United States therein, to discuss the reasons for believing that the proposed admission of refugees is justified by humanitarian concerns or grave humanitarian concerns or is otherwise in the national interest, and to provide such members with the following information: (1) a description of the nature of the refugee situation; (2) A description of the number and allocation of the refugees to be admitted and an analysis of conditions within the countries from which they came; (3) A description of the proposed plans for their movement and resettlement and the estimated cost of their movement and resettlement; (4) An analysis of the anticipated social, economic, and demographic impact of their admission; (5) A description of the extent to which other countries will admit and assist in the resettlement of such refugees; (6) An analysis of the impact of the participation of the United States in the resettlement of such refugees on the foreign policy interests of the United States; and (7) Such additional information as may be appropriate or requested by such members (8 U.S.C. § 1157).

In practice, this takes the form of a presidential report submitted annually to Congress. Typically, the admissions numbers are based on referrals from the United Nations High Commissioner for Refugees.

Syrian Refugees

It is under the provisions of the Refugee Act of 1980 that President Obama set a goal of admitting 10,000 Syrian refugees by the end of the fiscal year 2016. Since 2011, the United States has accepted 1,500 Syrian refugees. Refugee case processing moves through several federal agencies, and requires a series of checks and interviews. Prior to resettlement, the U.S. State Department compiles a refugee's personal and background information, which it then submits to the Department of Homeland Security. Next, a Homeland Security officer conducts an in-depth, in-person interview with the refugee, outside of the United States, to determine whether they meet necessary criteria. In addition to this interview, refugees also must undergo a health screening to determine their medical needs and ensure they do not have a contagious disease before their applications for resettlement can be approved.

Recent Developments

Immediately following the November 13, 2015 terrorist attacks in Paris, 31 governors announced that their states would not admit Syrian refugees due to security concerns. Despite the Obama administration's repeated assertion that, as a group, refugees undergo the most stringent background checks of any foreign nationals traveling to the United States, the governors held their ground. This led to questions pertaining to a governor's authority to refuse admittance of refugees, directly or indirectly.

If states cannot refuse to accept refugees directly, they may be able to deny their own resources to the federal government, which would make the settlement of refugees more difficult than in states receiving refugees. However, President Obama has warned states that the federal government will take enforcement action against states if they turn away Syrian refugees. On November 25, 2015, the federal Office of Refugee Resettlement (ORR) issued a letter restating its commitment to the resettlement of Syrian refugees and indicating that a state's refusal to provide assistance and services to refugees based on their race, religion, nationality, sex, or political opinion would violate state requirements under the Refugee Act and Title VI of the Civil Rights Act of 1964, among other statutes and assurances. Failure to meet nondiscrimination requirements, the letter states, would result in forfeiture of ORR funding.

Indirect and direct restriction also are limited in practice, as once refugees have been resettled in the United States, they may move freely across intrastate borders the same as any other person in the country. Thus, state efforts to prevent resettlement within their borders do not guarantee that refugees would not enter their state. Furthermore, the direct resettlement of Syrian refugees in several states to date–Georgia, Texas, New Jersey–demonstrates that federal law supersedes state efforts to restrict refugee resettlement.

State Actions to Restrict Syrian Refugees

GEORGIA

While state governments can discourage refugee resettlement, refusal of services or welfare applications on the basis of national origin violates the 1964 Civil Rights Act. Following Georgia Governor Nathan Deal's executive order "directing state agency heads to prevent the resettlement of Syrian refugees in Georgia," the state Division of Family and Children Services announced it would not process applications for food stamps submitted by Syrian refugees. In a letter, the associate administrator of the federal Supplemental Nutrition Assistance Program, Jessica Shahin, advised the director of Family and Children Services that refusing applications based on national origin violated federal law.

On December 4, 2015, a Syrian family was resettled in the state despite the governor's previous objections. On January 4, 2016, following the issuance of a formal opinion by state Attorney General Sam Olens, Governor Deal rescinded the order.

INDIANA

Typically, the State Department consults states on refugee placement, though the consultation is not binding. Discouraging initial placement, in practice, has been effective–as resettlement organizations hesitate to place families in unwelcoming or unsupportive environments–but discouraging placement may also violate the equal protection clause of the U.S. Constitution, if the policy is discriminatory. Following the direction of Indiana Governor Mike Pence, the Indiana Family & Social Services Administration sent a letter to a resettlement organization requesting that a Syrian family scheduled for placement in Indianapolis–as well as any other Syrians–be redirected to another state. The American Civil Liberties Union (ACLU), in its suit against the state of Indiana on behalf of the resettlement organization, calls for an injunction on the policy, asserting it violates equal protection and Title VI of the Civil Rights Act of 1964.

TEXAS

Texas currently accepts more refugees than any other state. Since 2011, about 240 Syrian refugees have been accepted and resettled in Texas.

On November 25, 2015, Texas officials sent a letter to the Internal Rescue Committee (IRC) threatening legal action if they did not stop the resettlement of Syrian refugees in Texas. In response to this letter, the IRC offered to work with the state but said it would not stop assisting the refugees.

On December 2, 2015, Texas officials filed a lawsuit against the federal government seeking to delay the arrival of a dozen Syrian refugees who were due to arrive in Dallas that week until a judge can hear their case. The state argues that the federal government and the Internal Rescue Committee have kept them "uninformed about refugees that could pose a security risk to Texans." They further contend that the federal government has not consulted with Texas about the intended distribution of refugees before their placement in the state, as is required by 8 U.S.C. Section 1522.

The suit comes after state officials sent IRC and the State Department letters requesting "all information relating to Syrians slated or scheduled for resettlement in Texas during the next 90 days" and demanding the refugee committee contact them by 3 p.m. and agree to cooperate and halt resettlement. According to the lawsuit, filed after the deadline, the refugee agency refused to comply.

On December 4, 2015, Texas withdrew its request for a temporary restraining order and preliminary injunction to prevent the imminent resettlement of 21 Syrian refugees in the state scheduled for the week of December 7. While the state has backed off its short-term request, it requested a hearing on or before December 9 on a permanent injunction. U.S. District Judge David Godbey denied the second request for a temporary injunction finding the state "failed to establish by a preponderance of the admissible evidence that there is a substantial threat."

LOUISIANA

On Monday, November 16, 2015, out-going Louisiana Governor Bobby Jindal issued an executive order to prevent Syrian refugees from being resettled in Louisiana. Similar to other Republican governors, Jindal expressed concern that Syrian refugees who do not receive proper pre-screening or follow-up monitoring could pose a threat to the citizens and property of Louisiana. In addition to issuing an executive order, Governor Jindal sent a letter to the president demanding to know information about the Syrian refugees being placed in his state. Prior to the November 13 terrorist attack in Paris, which prompted the governor's actions, 14 Syrians had been resettled in Louisiana in 2015, all but one of which were resettled in the New Orleans area.

OTHER STATES

Similar to Governor Jindal, Alabama Governor Robert Bentley issued an executive order and letter to the president. While the governors of Arkansas, Florida, Mississippi, Oklahoma, North Carolina, Oklahoma, South Carolina, and Tennessee also opposed refugee resettlement, they did not issue executive orders. Arkansas Governor Asa Hutchinson acknowledged federal authority and directed the state Department of Human Services to resist federal efforts. Mississippi Governor Phil Bryant similarly said the state Department of Safety and Office of Homeland Security would "do everything humanly possible" to stop federal efforts to resettle refugees in the state, but did not issue an executive order. The other governors addressed letters to various federal officials. Florida Governor Rick Scott outlined his concerns in a letter to Congress, while South Carolina Governor Nikki Haley and Oklahoma Governor Mary Fallin wrote Secretary of State John Kerry, and North Carolina Governor Pat McCrory appealed to the president.

In 2016, the issue has not subsided. As of January 7, Alabama became the second state to sue the federal government over the resettlement process. In Congress, 32 members urged the Senate to pass a bill requiring federal security agencies to unanimously approve all refugees from Iraq and Syria.

See Also:

Total Refugee Arrivals Syrian Refugee Arrivals
  2012 2013 2014 2012 2013 2014
SOUTH 18694 22910 22758 8 15 41
EAST* 10890 11775 12164 3 12 17
MIDWEST 14421 17651 17739 13 13 19
WEST 14233 17590 17325 11 8 55

Table 2. Total Refugee Arrivals in CSG Regions, by Fiscal Year. Source: United States Office of Refugee Resettlement.

*Puerto Rico included in all years except 2014.