HIAS, INC.; CHURCH WORLD SERVICE, INC.; LUTHERAN IMMIGRATION & REFUGEE SERVICE, INC. v. DONALD J. TRUMP, in his official capacity as President of the United States; MICHAEL R. POMPEO, in his official capacity as Secretary of State; ALEX M. AZAR, II, in his official capacity as Secretary of Health and Human Services; CHAD WOLF, in his official capacity as Acting Secretary of Homeland Security
No. 20-1160
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
January 8, 2021
Before KING, KEENAN, and HARRIS, Circuit Judges.
PUBLISHED
v.
Defendants - Appellants,
STATE OF CALIFORNIA; STATE OF ILLINOIS; STATE OF MARYLAND; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; STATE OF MAINE; COMMONWEALTH OF MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF OREGON; COMMONWEALTH OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF VERMONT; COMMONWEALTH OF VIRGINIA; STATE OF WASHINGTON; REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICE; INTERNATIONAL RESCUE COMMITTEE; UNITED STATES CONFERENCE OF CATHOLIC BISHOPS; WORLD RELIEF; THE MOST REVEREND MICHAEL BRUCE CURRY; PRESIDING BISHOP OF THE EPISCOPAL CHURCH; ETHIOPIAN COMMUNITY DEVELOPMENT COUNCIL, INC.; CITY OF TEMPE, AZ; CITY OF TUCSON, AZ; CITY OF ALAMEDA, CA; CITY OF LOS ANGELES, CA; COUNTY OF LOS ANGELES, CA; COUNTY OF MONTEREY, CA; CITY OF OAKLAND, CA; CITY OF SACRAMENTO, CA; CITY AND COUNTY OF SAN FRANCISCO, CA; COUNTY OF SANTA CLARA, CA; CITY OF SANTA MONICA, CA; CITY OF WEST HOLLYWOOD, CA; CITY AND COUNTY OF
Amici Supporting Appellee.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:19-cv-03346-PJM)
Argued: October 27, 2020 Decided: January 8, 2021
Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge King and Judge Harris joined.
ARGUED: Amanda Lee Mundell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Justin Bryan Cox, INTERNATIONAL REFUGEE ASSISTANCE PROJECT, Atlanta, Georgia, for Appellees. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Melissa S. Keaney, Fair Oaks, California, Linda Evarts, Mariko Hirose, INTERNATIONAL REFUGEE ASSISTANCE PROJECT, New York, New York; Jeffrey J. Resetarits, Deke Shearon, SHEARMAN & STERLING, New York, New York, for Appellees. Kwame Raoul, Attorney General, Jane Elinor Notz, Solicitor General, Sarah A. Hunger, Deputy Solicitor General, Jeff VanDam, Public Interest Counsel, Isaac Jones, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ILLINOIS, Chicago, Illinois, for Amicus
In 2019, President Donald Trump issued Executive Order 13,888 (the Order), which drastically alters the system by which the federal government resettles refugees across the United States. Rather than consulting with states and localities regarding their ability to accept refugees, the Order creates an “opt-in” system requiring that both a state and a locality provide their affirmative consent before refugees will be resettled there. Order § 2. In the funding notice (the Notice) implementing the Order, the Department of State imposed on private resettlement agencies, who provide social services for newly arrived refugees, the burden of seeking the consent of every state and locality where a refugee might be resettled. Three of these resettlement agencies have filed suit challenging the Order and Notice, asserting that they violate the Refugee Act,
Upon our review, we conclude that the plaintiffs have demonstrated that they are likely to succeed on their claim that the Order and Notice violate the carefully crafted scheme for resettling refugees that Congress established in the Refugee Act. We also conclude that the record supports the district court‘s award of preliminary injunctive relief under the remaining factors of Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (the Winter factors). Accordingly, we hold that the district court did not abuse its discretion in granting the preliminary injunction, and we affirm the district court‘s judgment.
In 1980, Congress passed the Refugee Act as an amendment to the Immigration and Nationality Act,
Prospective refugees seeking resettlement in the United States must obtain a determination of their refugee status before entering the country.3
The Refugee Act includes detailed provisions defining the relationship of the federal government, the resettlement agencies, the states, and the localities. Primarily at issue in this case is the Act‘s requirement that the federal government “consult regularly” with the other interested parties regarding the “sponsorship process and the [federal government‘s] intended distribution of refugees” around the country.
Before the issuance of Executive Order 13,888, the federal government fulfilled its obligation to consult with states and localities by engaging in regular outreach to state and local governments and attempting to address any concerns. This outreach included officials from the Department of State and the Department of Health and Human Services traveling to those jurisdictions to evaluate state and local concerns, in order to develop a
In September 2019, the provisions governing these procedures changed when the President issued Executive Order 13,888. In the Order, the President explained that “[s]ome States and localities . . . have viewed existing consultation as insufficient, and there is a need for closer coordination and a more clearly defined role for State and local governments in the refugee resettlement process.” Order § 1. The President expressed the view that state and local governments were in the best position to evaluate whether they had the resources necessary for “sustainable resettlement” of refugees. Id. The President thus concluded that with “limited exceptions,” the federal government “should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees.” Id. (emphasis added) (the consent requirement).
The Order directed that the Secretary of State and the Secretary of Health and Human Services create a process by which the consent of state and local governments “is taken into account to the maximum extent consistent with law.” Id. § 2(b). Under that process, if “either” a state or a locality does not consent, refugees will not be resettled within the non-consenting jurisdiction
To implement the Order, the Department of State issued a “FY 2020 Notice of Funding Opportunity for Reception and Placement Program” in November 2019 (the Notice). The Notice provides, in relevant part:
For each state and locality where the applicant [resettlement agency] proposes to resettle refugees during the award period, the applicant should seek written consent for resettlement of refugees from the state governor‘s office and the chief executive officer of the local government (county or county equivalent). [The Department of State‘s Bureau of Population, Refugees, and Migration (PRM)] will take into account such consents to the maximum extent permitted by law, including Section 412(a) of the INA and antidiscrimination laws, in deciding where to place refugees.
The Notice later explains that resettlement agencies must “document such consents or their unavailability,” and that the Department of State will not authorize placement in states or localities without such documentation. However, if these consents are not received before the date that applications are due, resettlement agencies nonetheless may submit their consent documentation on a rolling basis. The Notice does not explain how a resettlement agency could seek review by the Secretary of a jurisdiction‘s denial of consent.
Shortly after the Notice was issued, the plaintiffs, three resettlement agencies, filed suit against the Secretaries of State, Health and Human Services, and Homeland Security, as well as the President (collectively, the government) in federal district court in Maryland.
The district court granted the plaintiffs’ motion for a preliminary injunction. The court concluded that the consent requirement amounted to a veto given to states and localities over refugee resettlement within their borders. The court therefore held that the consent requirement was contrary to the Refugee Act‘s language, purpose, and history of imposing a uniform process for resettling refugees nationwide.4 The court also found that the plaintiffs would suffer irreparable harm in the absence of a preliminary injunction, citing the extreme difficulties that the resettlement agencies would face. The court accordingly issued an order preliminarily enjoining nationwide the implementation of the Order and Notice. The government now appeals.
We review the district court‘s issuance of a preliminary injunction for abuse of discretion. Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). A party seeking a preliminary injunction must show that: (1) the party is likely to succeed on the merits of the claim; (2) the party is likely to suffer irreparable harm in the absence of an injunction; (3) the balance of hardships weighs in the party‘s favor; and (4) the injunction serves the public interest. Id. at 320 (citing Winter, 555 U.S. at 20). We will address each factor in turn.
A.
The plaintiffs assert that the Order and Notice violate the Refugee Act, by allowing states and localities to decide unilaterally whether to allow refugees to resettle in their jurisdictions. In the plaintiffs’ view, by transforming the consultation process described in the Act into an “opt-in” system, the Order and Notice grant states and localities more authority over resettlement decisions than Congress intended. The plaintiffs also argue that this opt-in system results in a patchwork of resettlement locations disassociated from the priorities that Congress established in the Act.
In response, the government asserts that the Order and Notice merely implement the Act‘s requirement that the federal government “consult” with states and localities regarding their ability to accept refugees and give significant weight to the views of affected jurisdictions. The government contends that the Order and Notice do not require the consent of states and localities as a precondition to the resettlement of refugees, but merely call for this information to be provided as one factor that the Secretary of State (the
We first review the Refugee Act‘s text and structure, giving the statutory terms their ordinary meaning. Navy Fed. Credit Union v. LTD Fin. Servs., LP, 972 F.3d 344, 356 (4th Cir. 2020); Nat‘l Elec. Mfrs. Ass‘n v. U.S. Dep‘t of Energy, 654 F.3d 496, 504 (4th Cir. 2011). We interpret the Act‘s terms in the specific context in which they are used, as well as in “the broader context of the statute as a whole.” Navy Fed. Credit Union, 972 F.3d at 357 (citation omitted); see also Sierra Club v. U.S. Dep‘t of Interior, 899 F.3d 260, 291 (4th Cir. 2018). When Congress has included a statement of purpose in a statute, we read the terms of the statute consistent with its expressed purpose. Smith v. City of Jackson, 544 U.S. 228, 257 (2005) (O‘Connor, J., concurring in the judgment).
As noted above, this appeal centers on the question whether the opt-in system established by the Order and implemented by the Notice conflicts with the Act‘s requirement that the federal government “consult” with resettlement agencies, states, and localities (the consultation requirement). The Act includes several provisions that collectively comprise the consultation requirement. First, the Act includes an express statement of Congress’ intent that in providing refugee resettlement assistance, resettlement agency “activities should be conducted in close cooperation and advance consultation with State and local governments.”
The Act further directs that the Secretary “develop and implement, in consultation with representatives of voluntary agencies and State and local governments, policies and strategies for the placement and resettlement of refugees within the United States.”
Such policies and strategies, to the extent practicable and except under such unusual circumstances as the [Secretary] may recognize, shall—
(i) [e]nsure that a refugee is not initially placed or resettled in an area highly impacted (as determined under regulations prescribed by the [Secretary] after consultation with such agencies and governments) by the presence of refugees or comparable populations unless the refugee has a spouse, parent, sibling, son, or daughter residing in that area,
(ii) provide for a mechanism whereby representatives of local affiliates of voluntary agencies regularly (not less often than quarterly) meet with representatives of State and local governments to plan and coordinate in advance of their arrival the appropriate placement of refugees among the various States and localities . . . .
In addition to the consultation requirement, the Refugee Act requires that policies and strategies adopted by the Secretary “take into account” enumerated factors bearing on the likelihood of successful resettlement of refugees in a particular jurisdiction. The Secretary must consider:
(I) the proportion of refugees and comparable entrants in the population in the area,
(II) the availability of employment opportunities, affordable housing, and public and private resources (including educational, health care, and mental health services) for refugees in the area,
(III) the likelihood of refugees placed in the area becoming self-sufficient and free from long-term dependence on public assistance, and
(IV) the secondary migration of refugees to and from the area that is likely to occur.
With this statutory framework in mind, we first focus on the ordinary meaning of the requirement that the Secretary “consult” with resettlement agencies, localities, and states. The ordinary meaning of the term “consult” is to seek an opinion or advice, or to
The terms of the Order, however, do not require states and localities, before withholding consent, to engage in any deliberation with other interested parties. Thus, on its face, the consent requirement in the Order is inconsistent with the ordinary meaning of the term “consultation” as expressed in the Act.
Moreover, our interpretation of the terms “consult” and “consultation” is consistent with the broader context of the Refugee Act, which describes in detail the nature of the relationship of the federal government, the resettlement agencies, and the states and localities in making initial resettlement decisions. Enacted by Congress in 1980, the Act was designed “to provide comprehensive and uniform provisions for the effective
In contrast, the Order‘s opt-in procedure shifts the decision-making center of gravity from the federal government to states and localities. Without the Act‘s required dialogue before jurisdictions grant or withhold consent, the Secretary cannot timely evaluate what resources states and localities could devote to refugee resettlement or whether a particular jurisdiction might be suitable for resettlement.7 Thus, the Order‘s consent requirement
Nor does the Order require that states and localities base their consent decisions on the resettlement criteria specified in the Refugee Act, namely, (1) the population of refugees already in the area, (2) the availability of employment, housing, and other resources in the area, (3) the likelihood that refugees placed in the area will become self-sufficient, and (4) the likelihood of secondary migration to and from the jurisdiction in question (the statutory criteria, or the enumerated factors).
As discussed below, this provision does nothing more than impose on resettlement agencies the obligation to lobby local and state governments to obtain their consent.
Such potential disregard of the statutory criteria by states and localities is not a mere technicality but could undermine substantially the national resettlement program created by Congress. For example, the Act requires that the Secretary consider the likelihood of secondary migration, which occurs when refugees relocate elsewhere from their original placement, usually to be closer to family or friends.
The Order undermines this statutory priority of avoiding secondary migration by creating a random patchwork of jurisdictions that have agreed to accept refugees. Thus, if a locality with a significant refugee population from Country A withholds consent, family members who were placed elsewhere may move from their original placement to live near loved ones or other refugees from Country A in the non-consenting jurisdiction. Secondary migration therefore is likely to occur irrespective of the jurisdiction‘s failure to consent to the refugee‘s resettlement. Such resettlement migration in disregard of the statutory criteria will place increased stress on the non-consenting jurisdiction‘s resettlement infrastructure that otherwise could have been avoided.
In addition to shifting significant decision-making authority away from the Secretary, the Order also conflicts with the Refugee Act‘s allocation of responsibility between states and localities. Section 1522(a)(2)(D) of the Act provides:
With respect to the location of placement of refugees within a State, the Federal agency administering subsection (b)(1) shall, consistent with such policies and strategies and to the maximum extent possible, take into account recommendations of the State (emphasis added).
This provision gives states a significant voice in the Secretary‘s determination of which jurisdictions within each state are best equipped to accept refugees.
Notably, the provision omits any reference whatsoever to localities, indicating Congress’ intent to prioritize the recommendation of a state over its localities regarding the
The Order, however, creates impermissible power shifts between states and their localities, by purportedly enabling a locality to withhold consent and to override the state‘s decision to accept refugees. Again, this problem is not merely theoretical. At least three localities within consenting states already have acted in an attempt to withhold consent to refugee resettlement. As noted above, the Order‘s purported grant of such decision-making authority to local jurisdictions is at odds with the limited authority granted to localities by their states, and with the Act‘s mandate that the views of the state will be “take[n] into
The Notice also presumes, without justification, that executive officers of localities possess authority to make such a consent determination. The Notice requires written consent from the “chief executive officer of the local government (county or county equivalent).” However, in the unlikely event that a state granted its localities the authority to make such a decision withholding consent, that decision likely would rest with the localities’ legislative, rather than executive, branch of government. See 1 John Martinez, Local Government Law § 9:8 (Oct. 2020 update) (“Powers or functions conferred without limitation on local government entities are deemed to be exercisable by the entity‘s legislative body and by no other authority.“). Thus, with its disordered shifts in governmental power, the Order and Notice thrust the resettlement agencies into the middle of a process that will place states and their localities in conflict with each other and with the resettlement agencies themselves. This outcome plainly is at odds with the Act‘s goal of establishing a cooperative and collaborative relationship among states, localities, the federal government, and resettlement agencies.
Finally, the Notice is inconsistent with Congress’ express purpose regarding resettlement agencies’ allocation of resources. The Act states, in relevant part, that “[i]t is the intent of Congress that in providing refugee assistance under this section . . . social service funds should be focused on employment-related services, English-as-a-second-language training (in nonwork hours where possible), and case-management services . . . .”
Under the Notice, resettlement agencies face the onerous task of seeking consent from every state and locality where refugees might be placed. Put differently, the Notice radically transforms the resettlement agencies’ focus by imposing on them the extreme burden of lobbying the many states and localities to obtain their consent before refugees will be placed in those jurisdictions. The record is clear that the resettlement agencies were not designed for this role and have been forced to divert enormous resources from their core social service missions to their new lobbying responsibilities. And, if a state or locality declines to grant consent, local affiliates of the resettlement agencies will be unable to settle refugees in those jurisdictions and will lose their federal funding, resulting in great harm to the refugee resettlement infrastructure that has developed nationwide under the Act‘s umbrella.
Our conclusion regarding the many infirmities of the consent requirement is not altered by the government‘s reliance on the so-called “savings clause” of the Order, which provides:
[I]f either a State or locality has not provided consent to receive refugees under the Program, then refugees should not be resettled within that State or locality unless the Secretary of State concludes, following consultation with the Secretary of Health and Human Services and the Secretary of Homeland Security, that failing to resettle refugees within that State or locality would be inconsistent with the policies and strategies established under
8 U.S.C. [§] 1522(a)(2)(B) and(C) or other applicable law. If the Secretary of State intends to provide for the resettlement of refugees in a State or locality that has not provided consent, then the Secretary shall notify the President of such decision, along with the reasons for the decision, before proceeding.
While the savings clause offers a theoretical opportunity for the Secretary to override the consent requirement, the exception stated in the savings clause is merely that – theoretical. Neither the Order nor the Notice provide any mechanism whatsoever for resettlement agencies, states, or localities to seek an exception to the consent requirement. Contrary to the government‘s assertion, it is patently clear from the Notice that a resettlement agency‘s application will not be considered if a proposed state or locality has refused to consent to refugee resettlement within its borders.
Nor has the government explained any standards the Secretary would use to evaluate whether “failing to resettle refugees within [a non-consenting] State or locality would be inconsistent with the policies and strategies” of the Act. Order § 2(b) (emphasis added). Nothing in the Act requires that refugees be resettled in a jurisdiction with the most available resources relative to other locations. And given the many factors relevant to a resettlement decision, it is not clear how a resettlement agency could prove that the inability to resettle a refugee in any particular jurisdiction would be “inconsistent” with the Act. Accordingly, without a procedure for invoking the savings clause or any standards for applying it, we cannot conclude that the clause “saves” the Order from the infirmities described above.
More fundamentally, however, we reject the government‘s attempt to immunize the Order from review through a savings clause which, if operational, would nullify the “clear and specific” substantive provisions of the Order. City & Cnty. of S.F. v. Trump, 897 F.3d 1225, 1239 (9th Cir. 2018). The intent of the Order is clear. With “limited exceptions,”
At bottom, the consent requirement in the Order and Notice is “incompatible with the overall statutory scheme governing” the refugee resettlement program. Kouambo v. Barr, 943 F.3d 205, 213 (4th Cir. 2019). We therefore conclude that the plaintiffs are likely to succeed on the merits of their statutory claim.
B.
We turn to consider the remaining Winter factors, namely, whether the plaintiffs are likely to suffer irreparable harm in the absence of an injunction, whether the balance of
Although the government characterizes the harm that the plaintiffs allege as mere “administrative inconvenience,” the record establishes that the Order and Notice will cause much more significant and irreparable injuries. As described above, the burden of obtaining consent from every state and local government is an onerous one, requiring diversion of resources away from the resettlement agencies’ core missions. More consequentially, however, the plaintiffs likely will be unable to sponsor refugees in non-consenting jurisdictions. In the absence of federal funding for these refugees, local affiliates of the plaintiffs in non-consenting jurisdictions likely will have to cease their resettlement work. And, even if those local affiliates survive, the community connections they have developed are likely to erode in non-consenting jurisdictions where refugees no longer will be placed. These injuries would be significant and irreparable in the absence of an injunction.
We also agree with the district court that the balance of hardships favors the plaintiffs. The resettlement agencies face enormous burdens to comply with the Order and Notice, as well as the likelihood of affiliates closing entirely in jurisdictions that refuse consent. In contrast, under the district court‘s injunction, the government must continue to implement the refugee resettlement program according to the Act‘s well-established processes refined over several decades. These procedures include the federal government‘s robust consultation with states, localities, and resettlement agencies as required by the Act.
For these reasons, we hold that the district court did not abuse its discretion in issuing a preliminary injunction against implementation of the Order and Notice.
C.
Finally, the government argues that the district court abused its discretion in issuing a nationwide injunction that encompasses the six non-party resettlement agencies as well as the plaintiffs. The government argues that the injunction is overbroad, because these non-party resettlement agencies could have, but did not, challenge the Order and Notice. We disagree with the government‘s position.
District courts have broad discretion to craft remedies based on the circumstances of a case, but likewise must ensure that “a preliminary injunction is no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Roe v. Dep‘t of Def., 947 F.3d 207, 231 (4th Cir. 2020) (citations and internal quotation marks omitted). A district court may issue a nationwide injunction so long as the court “mold[s] its decree to meet the exigencies of the particular case.” Id. (quoting Trump v. Int‘l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017)). And a nationwide injunction may be appropriate when the government relies on a “categorical policy,” and when the facts would not require different relief for others similarly situated to the plaintiffs. Id. at 232-33.
III.
For these reasons, we affirm the district court‘s judgment.
AFFIRMED