Margulies, Peter

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Ninth Circuit Protects Refugees with Assurances of Sponsorship

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship9-8-2017Ninth Circuit Protects Refugees with Assurances ofSponsorshipPeter MarguliesRoger Williams University School of Law, pmargulies@rwu.eduFollow this and additional works at: http://docs.rwu.edu/law_fac_fsPart of the Immigration Law Commons, National Security Law Commons, President/ExecutiveDepartment Commons, and the Supreme Court of the United States CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter Margulies, Ninth Circuit Protects Refugees with Assurances of Sponsorship, Lawfare (Sept 8, 2017, 4:10 PM),https://www.lawfareblog.com/ninth-circuit-protects-refugees-assurances-sponsorship#TRAVEL BANNinth Circuit Protects Refugees with Assurances of SponsorshipBy Peter Margulies  Friday, September 8, 2017, 4:10 PMThe Ninth Circuit held in a per curiam order on Thursday (summarized here) that, pending a de½nitive adjudication on the merits, refugeesabroad with sponsorship assurances from U.S. resettlement agencies were not covered by President Trump’s revised executive order (EO) onrefugees and could enter the U.S. in the normal course of refugee resettlement. That’s the right result, though it pushes the boundaries ofthe Supreme Court’s June stay order and the Court’s July clari½cation, which I wrote about at the time. It also raises some troublingquestions about judicial review of Trump administration actions.Under the Court’s decision in Nken v. Holder, there are four elements that a party (here, the government) must show to receive a stay:1. A “strong showing” of likelihood of success on the merits;2. Irreparable injury;3. The absence of harm to other interested parties; and4. Consistency with the public interest.   Remember that before the July order, the government was seeking a stay from a district court injunction that narrowed the revised EO. Thatinjunction applied the Supreme Court’s holding in its June stay order: non-citizens abroad would not be covered by the EO if they couldshow a “bona ½de relationship” with a U.S. person or entity. Interpreting the Supreme Court’s “bona ½de relationship” test, the district courtheld that the test was satis½ed by:1. A relationship with a U.S. relative, including not just a spouse, parent, or child, but also a grandparent, grandchild, ½ancé, sibling, in-law, aunt/uncle, niece/nephew, and cousin; or2. Sponsorship by a U.S. refugee agency.In its preliminary decision in July, the Supreme Court let the ½rst component stand (as did the Ninth Circuit on Thursday). But it ruled,pending a full review of the stay in the Ninth Circuit, that the second component—refugee agency sponsorship—did not meet the “bona ½derelationship” test. Departing from the Supreme Court’s ruling, the Ninth Circuit held on Thursday that refugee agency sponsorship doesqualify as a bona ½de relationship.Thursday’s per curiam found that, in light of the vulnerabilities of refugees and the need for continuity in refugee resettlement, thegovernment did not meet elements (3) (harm to other interested parties) and (4) (the public interest) of the stay test. Sponsorship assuranceby an experienced refugee agency occurs near the end of an elaborate framework of refugee processing that includes reviews by both UnitedNations and the U.S. government, including DHS. As the Ninth Circuit explained, the assurances that U.S. resettlement agencies provideentail the careful marshaling of resources, including the time and money required to stand up a network of U.S. caregivers who will ease therefugees’ transition in the United States. A pause in refugee admissions would disrupt that painstaking process and fray connections thatagencies labor to establish. Moreover, the U.S. as a country bene½ts from its well-earned reputation as a haven for refugees. A pause wouldinjure that reputation, harming the public interest. Viewed in this light, the Ninth Circuit was right to exempt sponsored refugees from therevised EO, pending the Supreme Court’s review of the EO’s merits (the Court is set to hear argument on October 10).However, on the merits, as I explain in a recent piece, the revised EO narrowly passes muster under both the Immigration and NationalityAct (INA) and the Constitution. The Supreme Court’s June per curiam stay order suggested that equities tend to be less compelling for anoncitizen abroad who “lacks any connection to this country.” That observation dovetails with the Court’s holding in United States v.Verdugo-Urquidez that constitutional safeguards are few and far between for this group (at least if they’re not detained by the U.S. atGuantanamo and are therefore entitled to habeas corpus per the Court’s decision in Boumediene v. Bush).Moreover, the President also has delegated power under 8 U.S.C. § 1182(f) to suspend the entry of noncitizens on a ½nding that such entrywould be “detrimental to the interests of the United States.” The revised EO provided for a 120-day pause in the admission of refugees and a90-day pause in admission of nationals of six countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) that were either sites of tumultuousarmed con¾icts or state sponsors of terrorism. That pause would allow for a “worldwide review” to ensure the accuracy of U.S. screeningprocesses.As suggested by a Supreme Court case decided in June, Maslenjak v. United States, concerns about the accuracy of screening processes are notinherently illegitimate, no matter who occupies the White House. In Maslenjak, the Court held that the government had to show that a falsestatement made in the course of a noncitizen’s naturalization was “material” to obtaining citizenship—i.e., that the false statement made adifference in the naturalization decision. In the course of holding that materiality was required, the Court discussed the false statement inthe case, made by a refugee who had claimed that her husband had been subject to persecution in Bosnia. Her husband had in fact served ina Serbian unit responsible for unspeakable atrocities. While Justice Kagan’s opinion did not de½nitively comment on the legal status of thisfalse statement, the opinion left the strong impression that the statement was both egregiously false and material. A recent study by theGovernment Accountability Of½ce (GAO) demonstrated that such fraud is sadly not an isolated occurrence. As a longtime immigrationlawyer, I’m well aware of the problem that the GAO report documented: asylum and refugee processing hinges on the statements ofapplicants, and those applicants are human beings who sometimes surrender to the temptation to deceive others. As the Maslenjak casedemonstrates, asylum adjudicators do not always spot such attempts at deception. Con¾ating perpetrators and victims of persecution is, inthe words of 8 U.S.C. § 1182(f), “detrimental to the interests of the United States.”A brief pause tailored to facilitate a worldwide review of refugee and visa screening is consistent with the INA and the Constitution. While Idon’t favor such a pause as a matter of policy, judicial review does not turn on policy preferences. The Supreme Court’s June per curiam stayorder noted that “preserving national security is an urgent objective of the highest order,” and that executive efforts to meet that“compelling need” were entitled to a measure of judicial deference. As Jack explained in an insightful post, while President Trump’s excesseshave created marked stresses in American governance, responding with an unduly hasty retreat from time-honored principles of deferencecan compound the problem. (See Josh Blackman’s post here.) Viewed in this light, while I support the Ninth Circuit’s equitable compassionfor refugees, the overall direction of the Ninth Circuit’s decision may augur a wrong turn in judicial review. Perhaps the Supreme Court willrestore the balance.             Topics: Travel Ban, ImmigrationTags: Ninth Circuit, Hawaii v. TrumpPeter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, NationalSecurity Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the BushAdministration (New York: NYU Press, 2010).

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Ninth Circuit Protects Refugees with Assurances of Sponsorship

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