U.S. ALERT – Judge Lifts Trump Ban on Certain Following-to-Join Refugees

Judge Lifts Trump Ban on Certain Following-to-Join Refugees

On December 23, 2017, a federal judge in Seattle preliminarily enjoined federal agencies from enforcing a Trump administration-imposed ban on certain following-to-join refugees from entering the United States. The court said that it did so at an early stage in the proceedings because the plaintiffs showed that they were likely to succeed on their claims that the agencies exceeded their statutory authority and also that the plaintiffs meet other qualifying factors necessary for preliminary injunctive relief.

The court noted that the plaintiffs in the two motions at issue are refugees “in dire circumstances,” whose family members “yearn to be reunited with them,” and humanitarian organizations whose fundamental mission is “to help these vulnerable refugees resettle in the United States.” Among the plaintiffs are a Somali immigrant, admitted to the United States in 2014 as a refugee, who became a lawful permanent resident in 2016. He filed a petition to bring his wife and children to the United States as following-to-join refugees. His wife and children completed their final interviews and security and medical clearances, received a formal assurance from a refugee resettlement agency, and were on the brink of travel but have not yet received permission from the Department of Homeland Security to travel. His wife and oldest stepson are both Kenyan citizens, so the U.S. Embassy in Somalia said they could travel to the United States, but said that his four- and five-year-old sons could not do so because they are considered Somali citizens due to their father’s nationality.

Another plaintiff is an Iraqi national who served as an interpreter for the U.S. military, which put him in extreme danger in Iraq. He fled Iraq for Cairo, Egypt, without his family in 2014 and applied for refugee status in the United States. He was conditionally approved for U.S. resettlement in December 2015 and received an assurance of sponsorship from a resettlement agency. He was told to get ready to travel to the United States and was updating his passport when the restrictions on refugee admissions went into effect.

Also among the plaintiffs is a transgender woman who faces extreme harassment and persecution in Egypt because of her gender identity. Her refugee application was being processed on an expedited basis until the restrictions took effect.

The organizational plaintiffs, which include Jewish Family Services and the American Civil Liberties Union, are also suffering “irreparable harm,” the court said. They have dedicated significant resources to helping refugees from the countries in question. Due to the government’s actions, the organizations claim they will need to lay off employees, reduce services, cancel established programs, lose institutional knowledge, and ultimately lose goodwill with volunteers and community partners. Evidence of these threatened losses supported a finding of the possibility of irreparable harm, the court said, adding that the indefinite duration of the “delay” in admitting the refugees “leaves the organizations unable to operate or plan effectively, further deteriorating goodwill and adding to their harms.” Further, the court noted, the organizations cannot simply shift resources to “unaffected” refugees as the government suggested. Rather, they have built programs specifically to serve Muslim and Arabic-speaking refugees.

Among other things, the government asserted that the “doctrine of consular nonreviewability” applied to the claims in this case. However, the court observed that courts have traditionally applied that doctrine to bar challenges to decisions by consular officials adjudicating individual visa applications. In this case, the court noted, defendants relied on out-of-circuit authority to argue for a significant expansion of the doctrine and stated that the principle underlying that doctrine applies regardless of the manner in which the executive branch denies entry to an alien abroad, including a refugee applicant. The court noted that the individual plaintiffs did not seek review of an individual consular officer’s decision to grant or deny a visa pursuant to valid regulations, but rather the government’s promulgation of sweeping immigration policy. Courts can and do review constitutional and statutory challenges to the substance and implementation of immigration policy, the court said.

The court also noted that while the Secretary of Homeland Security has discretion in deciding the outcome of a refugee application, the law does not specify that the Secretary has discretion to suspend adjudication such applications. The court said, “In other words, the Secretary may have discretion over what the decision will be, but not over whether a decision will be made.”

The court also observed that the government offered no evidence that the suspension of admissions of refugees from certain countries was in response to a national security or foreign affairs crisis. The justification offered seemed to be that the government continued to have unspecified concerns regarding the admission of refugees from certain countries. The court agreed that the government has a “compelling” interest in national security, but noted that the government did not point to any specific national security threat that the restrictions curtail.

The court said that the preliminary injunction applies to all following-to-join refugees because, by definition, they have a bona fide relationship with a person in the United States, which is required based on a recent Supreme Court decision. The same, however, is not true for all refugees from the banned countries. “These refugees are not necessarily in a relationship with a United States person or organization,” the court noted.

The court noted that this is an area of “rapidly developing law with related cases presently on appeal and decisions anticipated shortly.” Stay tuned.

The decision is at https://www.politico.com/f/?id=00000160-8609-dcd4-a96b-b7290b5b0001.