Bid to block Syrian refugees hits a wall

Indiana Gov. Mike Pence’s bid to hamper efforts to relocate refugees fleeing from war-torn Syria to his state ran into strong resistance today.

In arguments before the 7th U.S. Circuit Court of Appeals, Indiana Solicitor General Thomas M. Fisher was bombarded with questions — as well as criticism and sarcastic comments — as he defended Pence’s attempt to block nonprofit resettlement agencies that assist Syrians from receiving funds under the federal Refugee Act.

Fisher appeared before the court to challenge a preliminary injunction that cleared the way for the agencies to get the funds.

Fisher rejected the notion that Pence’s action has anything to do with the Muslim faith of many Syrian refugees.

“Oh, yes it does,” Judge Richard A. Posner shot back.

He asked Fisher if Pence had singled out Syrians because of their nationality.

Fisher rejected that notion, contending Pence relied on reports from the FBI that people coming from Syria could include terrorists posing as refugees.

And unlike the situation in other countries, Fisher maintained, “we lack a footprint in Syria” that would allow the United States to gather intelligence on individual refugees.

“Honestly, you are so out of it,” Posner responded.

He reeled off a list of countries in the Middle East, Asia and Europe that have produced suspected terrorists.

Posner then asked how the FBI could know everything about terrorists from every nation other than Syria.

The men continued their sparring with Posner occasionally raising his voice and Fisher sometimes interrupting Posner.

The exchanges became so heated that Judge Frank H. Easterbrook told Fisher at one point that it was not a good strategy for a lawyer to talk over a judge.

Easterbrook himself asked why Pence would base his actions on what the FBI thinks when the U.S. State Department has determined its vetting of refugees passes muster.

“This is a governor who has a wealth of information,” Fisher replied.

Easterbrook also questioned why Indiana participates in the resettlement program under the Refugee Act if it objects to the federal statute’s prohibition on making distinctions based on refugees’ country of origin.

“If you’re in, you play by the government’s rules,” he said.

And Easterbrook rejected the assertion that Pence is not making distinctions based on nationality.

Pence has contended he wants to withhold funds based on the country from which refugees fled — Syria — and not on their country of origin, Easterbrook noted.

“All it produces is a broad smile,” he said of that argument.

Judge Diane S. Sykes said the directive issued last year announcing Indiana would be suspending the resettlement of Syrian refugees — it was actually “just a press release from the governor,” she said — clearly set out a plan to discriminate on the basis of national origin.

It wasn’t until later that the state did a partial walk-back and said it would block reimbursements for social services provided to refugees who fled from Syria, Sykes said.

The panel took the case under advisement.

In November, coordinated terrorist attacks in Paris killed 130 people.

The terrorists behind the attacks ultimately were identified as European nationals from France or Belgium.

But citing reports that at least one of the terrorists had possessed a fake Syrian passport, Pence maintained Islamic jihadists posing as Syrian refugees constituted a threat to public safety.

Pence, who now is also the running mate of Republican presidential nominee Donald Trump, issued his press release saying he was directing all state agencies to suspend the resettlement of additional Syrian refugees.

The suspension would remain in place “pending assurances from the federal government that proper security measures have been achieved,” Pence said in the release.

The state later indicated it would withhold grant money under the Refugee Act that otherwise would be used to reimburse private resettlement groups for providing refugees who fled from Syria with housing, job training and other social services.

Pence did not try to block Syrian refugees from receiving such assistance as food stamps and health-care benefits.

Indiana is among more than two dozen states, most of them with Republican governors, that have launched efforts to temporarily halt resettlement programs for Syrian refugees.

Exodus Refugee Immigration Inc., a not-for-profit organization based in Indianapolis, continued to resettle Syrian refugees in Indiana despite the threatened loss of funds.

But contending the loss would harm its ability to serve refugees, Exodus sued to block Pence’s order.

The suit contended Pence’s directive discriminated against Syrian refugees based on their national origin in violation of the equal protection clause and Title VI of the Civil Rights Act of 1964.

The suit also contended Pence was interfering with the federal government’s exclusive power over foreign relations.

The Obama administration filed a statement of interest in support of Exodus’ position.

In February, U.S. District Judge Tanya Walton Pratt of the Southern District of Indiana enjoined the state from enforcing Pence’s order while Exodus’ suit is pending.

Pratt concluded the order “clearly discriminates” against Syrians based on their nationality.

Appearing on behalf of Exodus, Kenneth J. Falk of the American Civil Liberties Union of Indiana today asked the 7th Circuit to keep the injunction in place.

Easterbrook told Falk he is “totally flummoxed” by Exodus’ equal protection arguments.

If the president, under the authority of the Refugee Act, can decide how many people from a particular country the United States will accept each year, Easterbrook asked, why can’t states?

Falk replied that the president’s decision concerns a foreign policy matter that affects refugees when they are in their home countries.

Once the refugees hit American soil, they must be protected from discrimination based on their nationality, Falk said.

The case is Exodus Refugee Immigration Inc. v. Michael R. Pence, et al., No. 16-1509.