7th Circuit affirms order against Pence in Syrian refugee case

Calling Gov. Mike Pence’s objection to the resettlement of Syrian refugees in Indiana because they may pose a terrorism threat “nightmare speculation,” the 7th Circuit Court of Appeals Monday rejected the governor’s appeal of rulings blocking his bid to withhold federal funding to an agency assisting war victims.

 “The governor of Indiana believes, though without evidence, that some of these persons were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here,” Judge Richard Posner wrote in a six-page order. “No evidence of this belief has been presented, however; it is nightmare speculation.”

The panel returned its ruling in Exodus Refugee Immigration, Inc. v. Michael R. Pence, in his official capacity as Governor of Indiana, et al., 16-1509, just 12 working days after Pence’s position was blasted in oral arguments before the Chicago panel.

Posner wrote that immigration matters are federal responsibilities governed by the Immigration and Nationality Act and the Refugee Act of 1980, which says services provided under the Act may not discriminate on several bases, including national origin. District Judge Tanya Walton Pratt ruled Pence’s announcement that he was suspending aid to assist Exodus resettle Syrian refugees was discrimination on the basis of national origin and granted an injunction blocking Pence, now the Republican vice presidential candidate, from withholding aid to Exodus.

“Fearing that Syrian immigrants may be potential terrorists, the governor wants to minimize their number in Indiana. Acknowledging that he can’t close Indiana’s borders to them, he has shifted focus to the plaintiff in this case — Exodus, a private nonprofit resettlement agency in Indiana that seeks to help refugees, including Syrian refugees, adjust to life in Indiana.”

In a statement after the ruling Monday, Pence spokeswoman Kara Brooks said, “The safety and security of the people of Indiana is Governor Pence's highest priority. The state of Indiana took decisive action last year to suspend resettlement of Syrian refugees after the terrorist attack in Paris and because the FBI and the Department of Homeland Security acknowledged security gaps with regard to screening refugees from Syria. In addition, as recently as September 21, the State Department spokesman is quoted as saying he ‘wouldn’t debate the fact that there’s the potential for ISIS terrorists to try to insert themselves’ into the refugee program.”

The statement did not indicate whether the state would seek an appeal of Monday's ruling.

The American Civil Liberties Union of Indiana represented Exodus and claimed victory. “The Court of Appeals' decision underscores what we have said throughout this litigation,” said Ken Falk, legal director of the ACLU of Indiana. “Governor Pence may not constitutionally or legally discriminate against a particular nationality of refugees that are extensively vetted by the federal government.”

The opinion notes 174 Syrian refugees came to Indiana in the last fiscal year, though it’s unknown how many of them were assisted by Exodus. “But we do know for certain that Exodus will receive nothing from the state for Syrian refugees this year unless we affirm the preliminary injunction. Without the injunction, Exodus, if unable (as it fears) to obtain the necessary funds from another source, will be unable to provide essential assistance to the refugees. Most of them may therefore decide to resettle in other states — exactly what the governor of Indiana wants — in the face of the statutory provision we cited that forbids a state in distributing funds” on the basis of nationality.

“The governor’s brief asserts ‘the State’s compelling interest in protecting its residents from the well-documented threat of terrorists posing as refugees to gain entry into Western countries.’ But the brief provides no evidence that Syrian terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in the United States. Indeed, as far as can be determined from public sources, no Syrian refugees have been arrested or prosecuted for terrorist acts or attempts in the United States.”

Pence “argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.

“A final oddity of about the governor’s position is how isolated it is. There are after all fifty states, and nothing to suggest that Indiana is a magnet for Syrians. Although in the fall of 2015 a number of state governors issued statements opposing the resettlement of Syrian[s] in their domains, their opposition petered out. Since then Syrian refugees have been resettled in 40 states (Indiana is of course one of them), and there is no indication their absence from the other 10 is attributable to actions by state governments.”

Posner wrote that Indiana could withdraw from the refugee assistance program as other states have done, but that wouldn’t necessarily stop Syrian refugees from settling in Indiana.