Indiana Ban on Syrian Refugees |Draws Mockery From 7th Circuit

     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. “So what? You don’t trust them? Is that the point?”
     Though Fisher harped on the lack of information that the United States has on Syrian refugees, he conceded Posner’s point that the government likely takes this into consideration when determining whether to let in a refugee applicant.
     “And you do it better, or what?” Posner asked.
     Fisher repeatedly returned to the FBI’s statement only to be shouted down alternately by Posner and U.S. Circuit Judge Frank Easterbrook.
     “I don’t understand what difference it makes what the head of the FBI said,” Easterbrook said. “We have an amicus brief in this case filed by the United States, and the United States thinks that Indiana has exceeded its authority.”
     Easterbrook scoffed as Fisher insisted that Indiana’s policy “goes to security issues not to ethnicity or ancestry.”
     “When a state makes an argument that’s saying we’re differentiating according to whether somebody is from Syria, but that has nothing to do with national origin, all it produces is a broad smile,” Easterbrook said.
     Fisher tried to emphasize that the policy concerns resettlement only.
     “If somehow we were doing something to actually stop people from coming in the state, that would be one thing,” Fisher said.
     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.
     Posner seized on the attorney when he said the United States needs to better understand the concerns of state and local authorities. “Are Syrians the only Muslims that Indiana fears?” he asked.
     Fisher halfheartedly replied: “This has nothing to do with religion.”
     A shouting match erupted when Posner asked what terrorist attacks in New York, Boston and San Bernardino, California, all have in common. “They’re all by Muslims,” the judge boomed, grilling Fisher on why Indiana is taking a stance only against Syrian Muslims.
     Posner cut off the attorney when he spoke about the lack of intelligence on Syrians.
     “So, in other words,” the judge with a chuckle, “we have enough information to prevent terrorist attacks by anybody who is not from Syria. Is that what you’re saying? Is that what the FBI says? ‘We’re perfectly secure against everyone except Syrians.’ That’s preposterous, right? Well then why has Indiana focused on Syrians if there are terrorist dangers from other foreigners who happen to be Muslim?”
     Fisher brought up the FBI statement yet again, and Posner lost what little patience he had.
     “Oh, honestly!” the judge shouted. “You are so out of it. You don’t think there are dangers from people from Libya, from Egypt, from Saudia Arabia, from Yemen. From Greece and France and Germany, which have had terrorist attacks?”
     Easterbrook wrapped up when Fisher again referenced the FBI director.
     “So the state’s position, as I understand it, is that the director of the FBI has higher authority over terrorism than the president of the United States, and the state doesn’t have to follow the rules of the Refugee Act,” Easterbrook said. “Which is pretty extraordinary on both counts. The president of the United States has determined that the United States knows enough to admit 10,000 Syrian refugees. That’s the president’s decision. It may be right, may be wrong. I don’t see how a governor can disagree with the president by saying, ‘well, the FBI director may have given him contrary advice.'”
     The 27-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 based on national origin how many refugees there are,” the judge asked, “why can’t a state?”
     Falk answered calmly that “the Nationality Act and equal-protection clause do not apply to people overseas.”
     “Once the Syrians are here, then everything attaches,” Falk added.
     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 4-year-olds from resettling in Indiana is narrowly tailored to serve the state’s asserted interest in public safety.”
     
     Editor’s Note: This article has been changed from its original version to replace inexact quotations. Courthouse News regrets the errors.

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