Court Lambastes Indiana Attorney General Over State Ban on Syrian Refugees

Monday, September 19, 2016
Judge Richard Posner (photo: Wikipedia)

By Jack Bouboushian, Courthouse News Service


CHICAGO (CN) — Sketching out certain defeat for Indiana's policy against Syrian refugee resettlement, the Seventh Circuit's most outspoken jurists rained a tag-team of rhetorical blows down on the state's attorney Wednesday morning.


The policy adopted earlier this year may have endeared Indiana Gov. Mike Pence to the Republican presidential campaign, but Solicitor General Thomas Fisher provoked outrage from the federal appeals court in his attempts Wednesday to justify it.


Setting the tone for the day, U.S. Circuit Judge Richard Posner jumped in immediately as Fisher cited a supposed statement of the FBI director that the U.S. government lacks intelligence on Syrians because there has not been a large-scale military intervention into the country.


"Aren't all these people screened by the State Department," Posner asked. "You don't trust the State Department? Will you do better?"


Fisher repeatedly returned to the FBI's statement only to be shouted down alternately by Posner and U.S. Circuit Judge Frank Easterbrook.


"What difference does it make what the FBI says," Easterbrook asked. "In an amicus brief, the United States says Indiana has exceeded its authority."


Easterbrook scoffed at Fisher's replies. "When a state targets a policy against people from Syria and says it has nothing to do with national origin, it produces nothing but a broad smile," the judge said.


Fisher tried to emphasize that the policy concerns resettlement only. "If we were actually preventing people from entering the state," he said, "that would be different."


Easterbrook was not convinced, however, saying states cannot selectively apply federal program funds. Either they opt in to the program or they do not, he said.


Fisher stumbled for a minute before settling on "no" when Easterbrook asked if there was any language in the Refugee Act that he was relying on.


This simple answer brought Posner back into the ring. "Are Syrians the only Muslims Indiana fears?"


Fisher halfheartedly replied: "This has nothing to do with religion."


Posner chuckled and boomed: "All of the terrorist attacks you pointed to have been done by Muslims. So we're secure against anyone except Syrians? Look! Has the FBI said, 'we're secure against people from France or Germany'? Why's Indiana focused on Syrians?"


Fisher brought up the FBI statement yet again, and Posner lost what little patience he had.


"Honestly!" the judge shouted. "You are so out of it! You don't think there are dangers from other countries?"


Easterbrook wrapped up: "Is Indiana's position that the FBI director is higher in the hierarchy on such matters than the president of the United States, who says there is no special threat from Syria and who has determined that the U.S. knows enough to admit 10,000 refugees? What difference does it make that the FBI may have given contrary advice?"


The 35-minute hearing went decidedly better for Kenneth Falk, an attorney for Exodus Refugee Immigration, the social-services group challenging Indiana's policy.


Easterbrook pointed out to Falk that refugee programs naturally take nationality into account. "If the president can decide how many to admit," Easterbook said, "why can't the state?"


Falk answered calmly: "Because once they arrive here, equal protection applies."


Judge Diane Sykes then lobbed a few softball questions about the difference between country of origin and nationality. Easterbrook noted that the plaintiffs could likely win if they focused solely on the Refugee Act, Falk assented and the session ended.


Posner said nothing during Falk's argument or Fisher's halfhearted rebuttal, leaving little doubt as to the fate of Mike Pence's battle against Syrian refugees, at least with respect to this policy.


Exodus has not returned a request for comment from Courthouse News.


Refugee opposition took shape earlier this year on the heels of terrorist attacks in France. Months before Donald Trump named him a running mate, Indiana's Pence joined 30 other American governors who vowed not to let any of the millions of refugees fleeing the Syrian Civil War into their states.


States have no power to suspend grants of asylum, however, so Pence instead ordered state agencies to withhold federal grant money from local resettlement agencies that provide refugees with social services.


Pence pointed to "security" reasons and a need to "err on the side of caution."


Earlier this year, in a decision welcomed by the ACLU and plaintiff Exodus Refugee Immigration, U.S. District Judge Tanya Walton Pratt enjoined Pence's plan, saying "the state's own characterization of it removes any doubt that it discriminates based on national origin."


"This is essentially a policy of punishing Syrian refugees already in Indiana in the hopes that no more will come," Pratt wrote.


Given the young age of some Syrian refugees served by Exodus, Pratt called it unreasonable for Indiana "to contend that a policy that purportedly deters four-year-olds from resettling in Indiana is narrowly tailored to serve the state's asserted interest in public safety."


To Learn More:

Judge Derails Texas Effort to Block U.S. Resettlement of Syrian Refugees (by David Lee, Courthouse News Service)

Anti-Muslim Rhetoric, Once Used Only by Far-Right, Has Now Gone Mainstream Republican (by Steve Straehley, AllGov)

Syrian Refugees Already Face a 21-Step Vetting Process for Entering the U.S. (by Noel Brinkerhoff and Steve Straehley, AllGov)

Would Jesus Have Turned Away Syrian Refugees? (by Noel Brinkerhoff and Steve Straehley, AllGov)


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