HIAS, Inc. v. Donald Trump

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1160
HIAS, INC.; CHURCH WORLD SERVICE, INC.; LUTHERAN IMMIGRATION
& REFUGEE SERVICE, INC.,
Plaintiffs - Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States;
MICHAEL R. POMPEO, in his official capacity as Secretary of State; ALEX M.
AZAR, II, in his official capacity as Secretary of Health and Human Services; CHAD
WOLF, in his official capacity as Acting Secretary of Homeland Security,
Defendants - Appellants,
------------------------------
STATE OF CALIFORNIA; STATE OF ILLINOIS; STATE OF MARYLAND;
STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF
DELAWARE; STATE OF MAINE; COMMONWEALTH OF
MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE
OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE
OF OREGON; COMMONWEALTH OF PENNSYLVANIA; STATE OF RHODE
ISLAND; STATE OF VERMONT; COMMONWEALTH OF VIRGINIA; STATE
OF WASHINGTON; REFUGEE AND IMMIGRANT CENTER FOR
EDUCATION AND LEGAL SERVICE; INTERNATIONAL RESCUE
COMMITTEE; UNITED STATES CONFERENCE OF CATHOLIC BISHOPS;
WORLD RELIEF; THE MOST REVEREND MICHAEL BRUCE CURRY;
PRESIDING BISHOP OF THE EPISCOPAL CHURCH; ETHIOPIAN
COMMUNITY DEVELOPMENT COUNCIL, INC.; CITY OF TEMPE, AZ; CITY
OF TUCSON, AZ; CITY OF ALAMEDA, CA; CITY OF LOS ANGELES, CA;
COUNTY OF LOS ANGELES, CA; COUNTY OF MONTEREY, CA; CITY OF
OAKLAND, CA; CITY OF SACRAMENTO, CA; CITY AND COUNTY OF SAN
FRANCISCO, CA; COUNTY OF SANTA CLARA, CA; CITY OF SANTA
MONICA, CA; CITY OF WEST HOLLYWOOD, CA; CITY AND COUNTY OF
DENVER, CO; CITY OF ST. PETERSBURG, FL; CITY OF BOISE, ID; CITY OF
CHICAGO, IL; CITY OF HOLYOKE, MA; CITY OF SOMERVILLE, MA; CITY
OF ST. PAUL, MN; CITY OF LINCOLN, NE; CITY OF ALBUQUERQUE, NM;
CITY OF SANTA FE, NM; NEW YORK CITY, NY; TOWN OF CARRBORO,
NC; CITY OF COLUMBUS, OH; CITY OF CINCINNATI, OH; CITY OF
PORTLAND, OR; CITY OF PHILADELPHIA, PA; CITY OF PROVIDENCE, RI;
CITY OF KNOXVILLE, TN; CITY OF AUSTIN, TX; COUNTY OF HARRIS, TX;
CITY OF HOUSTON, TX; COUNTY OF KING, WA; CITY OF SEATTLE, WA;
CITY OF TACOMA, WA; CITY OF MADISON, WI; U. S. CONFERENCE OF
MAYORS; LAUREN MCLEAN, Mayor of Boise, ID; DAVID R. MARTIN, Mayor
of Stamford, CT; RICK KRISEMAN, Mayor of St. Petersburg, FL; NOAM
BRAMSON, Mayor of New Rochelle, NY; ALEX MORSE, Mayor of Holyoke,
MA; MICHAEL DUGGAN, Mayor of Detroit, MI; FORMER STATE
DEPARTMENT OFFICIALS,
Amici Supporting Appellee.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge. (8:19-cv-03346-PJM)
Argued: October 27, 2020 Decided: January 8, 2021
Before KING, KEENAN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge King
and Judge Harris joined.
ARGUED: Amanda Lee Mundell, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants. Justin Bryan Cox, INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, Atlanta, Georgia, for Appellees. ON BRIEF: Joseph H. Hunt,
Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Melissa S. Keaney,
Fair Oaks, California, Linda Evarts, Mariko Hirose, INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, New York, New York; Jeffrey J. Resetarits, Deke Shearon,
SHEARMAN & STERLING, New York, New York, for Appellees. Kwame Raoul,
Attorney General, Jane Elinor Notz, Solicitor General, Sarah A. Hunger, Deputy Solicitor
General, Jeff VanDam, Public Interest Counsel, Isaac Jones, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF ILLINOIS, Chicago, Illinois, for Amicus
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State of Illinois. Xavier Becerra, Attorney General, Michael L. Newman, Senior Assistant
Attorney General, Cherokee DM Melton, Supervising Deputy Attorney General, Vilma
Palma-Solana, Deputy Attorney General, Jasleen K. Singh, Deputy Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF CALIFORNIA, Los Angeles, California,
for Amicus State of California. Brian E. Frosh, Attorney General, Steven M. Sullivan,
Solicitor General, Jeffry P. Dunlap, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Amicus State of
Maryland. Phil Weiser, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF COLORADO, Denver, Colorado, for Amicus State of Colorado. William Tong,
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF CONNECTICUT,
Hartford, Connecticut, for Amicus State of Connecticut. Kathleen Jennings, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF DELAWARE, Dover Delaware,
for Amicus State of Delaware. Aaron M. Frey, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF MAINE, Augusta, Maine, for Amicus State of Maine.
Maura Haley, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
MASSACHUSETTS, for Amicus Commonwealth of Massachusetts. Dana Nessel,
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing,
Michigan, for Amicus State of Michigan. Keith Ellison, Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF MINNESOTA, for Amicus State of Minnesota. Gurbir
S. Grewal, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW
JERSEY, Newark, New Jersey, for Amicus State of New Jersey. Hector Balderas,
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY, for
Amicus State of New Jersey. Letitia James, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF NEW YORK, New York, New York, for Amicus State of
New York. Ellen F. Rosenblum, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF OREGON, for Amicus State of Oregon. Josh Shapiro, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF PENNSYLVANIA, Philadelphia,
Pennsylvania, for Amicus Commonwealth of Pennsylvania. Peter Neronha, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF RHODE ISLAND, Providence,
Rhode Island, for Amicus State of Rhode Island. Thomas J. Donovan, Jr., Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VERMONT, Montpelier,
Vermont, for Amicus State of Vermont. Mark R. Herring, Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, for Amicus Commonwealth of Virginia.
Robert W. Ferguson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
WASHINGTON, Olympia, Washington, for Amicus State of Washington. Ofelia Lee
Calderón, CALDERÓN SEGUIN, Fairfax, Virginia; Manoj Govindaiah, Maria Osornio,
REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL
SERVICES, San Antonio, Texas, for Amicus Refugee and Immigrant Center for Education
and Legal Services. Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief
Assistant City Attorney, Danielle L. Goldstein, Deputy City Attorney, Michael Dundas,
Deputy City Attorney, OFFICE OF THE LOS ANGELES CITY ATTORNEY, Los
Angeles, California, for Amicus City of Los Angeles. George S. Cardona, Interim City
Attorney, CITY ATTORNEY’S OFFICE, Santa Monica, California, for Amicus City of
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Santa Monica, California. Susana Alcala Wood, City Attorney, CITY ATTORNEY’S
OFFICE, Sacramento, California, for Amicus City of Sacramento, California. Leslie J.
Girard, County Counsel, William Litt, Deputy County Counsel, COUNTY ATTORNEY’S
OFFICE, Salinas, California, for Amicus County of Monterey, California. Esteban A.
Aguilar, Jr., City Attorney, CITY ATTORNEY’S OFFICE, Albuquerque, New Mexico,
for Amicus City of Albuquerque, New Mexico. Peter S. Holmes, Seattle City Attorney,
CITY ATTORNEY’S OFFICE, Seattle, Washington, for Amicus City of Seattle,
Washington. Kristin M. Bronson, City Attorney, CITY ATTORNEY’S OFFICE, Denver,
Colorado, for Amicus City and County of Denver, Colorado. Lyndsey M. Olson, City
Attorney, CITY ATTORNEY’S OFFICE, St. Paul, Minnesota, for Amicus City of St. Paul.
Eli Savit, Detroit, Michigan, for Amicus Mayor Michael E. Duggan, City of Detroit,
Michigan. Yibin Shen, City Attorney, CITY ATTORNEY’S OFFICE, Alameda,
California, for Amicus City of Alameda, California. Judi Baumann, City Attorney, CITY
ATTORNEY’S OFFICE, Tempe, Arizona, for Amicus City of Tempe, Arizona. Anne L.
Morgan, City Attorney, CITY ATTORNEY’S OFFICE, Austin, Texas, for Amicus City
of Austin, Texas. Mark A. Flessner, Corporation Counsel, Benna Ruth Solomon, Deputy
Corporation Counsel, CITY OF CHICAGO, Chicago, Illinois, for Amicus City of Chicago,
Illinois. Erin K. McSherry, City Attorney, CITY ATTORNEY’S OFFICE, Santa Fe, New
Mexico, for Amicus City of Santa Fe, New Mexico. Jeffrey Dana, City Solicitor, OFFICE
OF THE CITY SOLICITOR, Providence, Rhode Island, for Amicus City of Providence,
Rhode Island. Vince Ryan, County Attorney, Robert Hazeltine-Shedd, COUNTY
ATTORNEY’S OFFICE, Houston, Texas, for Amicus County of Harris, Texas. Howard
Phillip Schneiderman, Senior Deputy Prosecuting Attorney, COUNTY ATTORNEY’S
OFFICE, Seattle, Washington, for Amicus County of King, Washington. Dennis J.
Herrera, City Attorney, San Francisco, California, for Amicus City and County of San
Francisco, California. Barbara J. Parker, City Attorney, OAKLAND CITY
ATTORNEY’S OFFICE, Oakland, California, for Amicus City of Oakland, California.
Michael Rankin, City Attorney, CITY ATTORNEY’S OFFICE, Tucson, Arizona, for
Amicus City of Tucson, Arizona. Michael Haas, City Attorney, CITY ATTORNEY’S
OFFICE, Madison, Wisconsin, for Amicus City of Madison, Wisconsin. Mary C.
Wickham, County Counsel, Scott Kuhn, Assistant County Counsel, Katherine G. McKeon,
Deputy County Counsel, COUNTY ATTORNEY’S OFFICE, Los Angeles, California, for
Amicus County of Los Angeles, California. Nick Herman, THE BROUGH LAW FIRM,
Chapel Hill, North Carolina, for Amicus Town of Carrboro, North Carolina. James E.
Johnson, Corporation Counsel, CITY ATTORNEY’S OFFICE, New York, New York, for
Amicus New York City, New York. Paula Boggs Muething, City Solicitor, CITY
SOLICITOR’S OFFICE, Cincinnati, Ohio, for Amici City of Cincinnati. Tracy Reeve,
City Attorney, CITY ATTORNEY’S OFFICE, Portland, Oregon, for Amicus City of
Portland, Oregon. James R. Williams, County Counsel, OFFICE OF THE COUNTY
COUNSEL, San Jose, California, for Amicus Santa Clara County, California. Marcel S.
Pratt, City Solicitor, City of Philadelphia Law Department, OFFICE OF THE CITY
SOLICITOR, Philadelphia, Pennsylvania, for Amicus City of Philadelphia, Pennsylvania.
Francis X. Wright, Jr., City Solicitor, CITY SOLICITOR’S OFFICE, Somerville,
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Massachusetts, for Amicus City of Somerville, Massachusetts. Crystal Barnes, Acting City
Solicitor, CITY SOLICITOR’S OFFICE, Holyoke, Massachusetts, for Amici City of
Holyoke, Massachusetts and Alex Morse, Mayor of Holyoke, Massachusetts. Michael
Jenkins, City Attorney, BEST BEST & KRIEGER, Manhattan Beach, California, for
Amicus City of West Hollywood, California. William Fosbre, City Attorney, CITY
ATTORNEY’S OFFICE, Tacoma, Washington, for Amicus City of Tacoma, Washington.
Zach Klein, City Attorney, Columbus, Ohio, for Amicus City of Columbus, Ohio. Charles
W. Swanson, City of Knoxville Law Director, CITY ATTORNEY’S OFFICE, Knoxville,
Tennessee, for Amicus City of Knoxville, Tennessee. Ronald C. Lewis, City Attorney,
Judith L. Ramsey, Chief, General Litigation Section, Collyn Peddie, Senior Assistant City
Attorney, Houston, Texas, for Amicus City of Houston, Texas. Jayme B. Sullivan, City
Attorney, Boise, Idaho, for Amicus City of Boise, Idaho and Mayor Lauren McLean. Mark
David McPherson, San Francisco, California, William C. Herbert, MORRISON &
FOERSTER LLP, Los Angeles, California, for Amici International Rescue Committee,
United States Conference of Catholic Bishops, World Relief, The Most Reverend Michael
Bruce Currey, Presiding Bishop of the Episcopal Church, and Ethiopian Community
Development Council, Inc. Steven H. Schulman, Washington, D.C., Jessica M. Weisel,
Joshua D. Tate, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California,
for Amici Former State Department Officials.
5
BARBARA MILANO KEENAN, Circuit Judge:
In 2019, President Donald Trump issued Executive Order 13,888 (the Order), which
drastically alters the system by which the federal government resettles refugees across the
United States. Rather than consulting with states and localities regarding their ability to
accept refugees, the Order creates an “opt-in” system requiring that both a state and a
locality provide their affirmative consent before refugees will be resettled there. Order § 2.
In the funding notice (the Notice) implementing the Order, the Department of State
imposed on private resettlement agencies, who provide social services for newly arrived
refugees, the burden of seeking the consent of every state and locality where a refugee
might be resettled. Three of these resettlement agencies have filed suit challenging the
Order and Notice, asserting that they violate the Refugee Act, 8 U.S.C. § 1522 (the Refugee
Act, or the Act), principles of federalism, and the Administrative Procedure Act, 5 U.S.C.
§ 706(2). The district court issued a preliminary injunction prohibiting enforcement of the
Order and Notice, and the government filed this interlocutory appeal.
Upon our review, we conclude that the plaintiffs have demonstrated that they are
likely to succeed on their claim that the Order and Notice violate the carefully crafted
scheme for resettling refugees that Congress established in the Refugee Act. We also
conclude that the record supports the district court’s award of preliminary injunctive relief
under the remaining factors of Winter v. Natural Resources Defense Council, 555 U.S. 7(2008) (the Winter factors). Accordingly, we hold that the district court did not abuse its
discretion in granting the preliminary injunction, and we affirm the district court’s
judgment.
6
I.
In 1980, Congress passed the Refugee Act as an amendment to the Immigration and
Nationality Act, 8 U.S.C. § 1101 et seq. (the INA). See Refugee Act of 1980, Pub. L. No.
96-212, 94 Stat. 102 (current version codified at 8 U.S.C. § 1522). The Act establishes the
refugee resettlement program, “a permanent and systematic procedure for the admission to
this country of refugees of special humanitarian concern to the United States, and to
provide comprehensive and uniform provisions for the effective resettlement and
absorption of those refugees who are admitted.” 1 Pub. L. No. 96-212, § 101(b), 94 Stat.
102. The program is administered jointly by the Department of State and the Department
of Health and Human Services. 2 8 U.S.C. § 1521.
Prospective refugees seeking resettlement in the United States must obtain a
determination of their refugee status before entering the country. 3 8 U.S.C. § 1101(a)(42).
Upon approval, refugees are sponsored by a private, non-profit resettlement agency, also
referred to as a voluntary agency. § 1522(b)(1)(A). The Department of State contracts
1
Each year, the President determines the number of refugees that will be accepted
for resettlement in the United States. 8 U.S.C. § 1157(a). For fiscal year 2020, President
Trump set the maximum number of refugees at 18,000.
2
The Bureau of Population, Refugees, and Migration and the Office of Refugee
Resettlement, within the two departments respectively, are responsible for administering
the program.
3
As relevant here, the INA defines “refugees” eligible for the resettlement program
as persons who are “persecuted or who [have] a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42). The resettlement program does not apply to persons
who seek asylum upon their arrival in the United States.
7
with nine of these agencies to provide resettlement services to refugees, including
assistance with obtaining employment, English-language services, medical care, and
housing. § 1522(a)(1), (b)(1)(A), (b)(7). Each year, resettlement agencies apply for federal
funding to sponsor a defined number of refugees and propose to the Department of State a
suggested distribution of those refugees to locations serviced by the agencies’ local
affiliates across the country. In Fiscal Year 2020, resettlement agencies received $2,175
in federal funding for each refugee sponsored.
The Refugee Act includes detailed provisions defining the relationship of the federal
government, the resettlement agencies, the states, and the localities. Primarily at issue in
this case is the Act’s requirement that the federal government “consult regularly” with the
other interested parties regarding the “sponsorship process and the [federal government’s]
intended distribution of refugees” around the country. § 1522(a)(2)(A). The Act requires
that the federal government consult with these parties to develop policies governing the
refugee resettlement program. § 1522(a)(2)(B). Congress has strengthened these
consultation requirements over the years to ensure that the interests of states and localities
are adequately considered before refugees are placed in their jurisdictions. See H.R. Rep.
99-132, at 18 (1985), as reprinted in 1986 U.S.C.C.A.N. 5857, 5869.
Before the issuance of Executive Order 13,888, the federal government fulfilled its
obligation to consult with states and localities by engaging in regular outreach to state and
local governments and attempting to address any concerns. This outreach included
officials from the Department of State and the Department of Health and Human Services
traveling to those jurisdictions to evaluate state and local concerns, in order to develop a
8
comprehensive, nationwide plan for placing refugees throughout the country. The federal
government addressed concerns raised by states or localities subject to the understanding
that the states and localities could not reject resettlement of refugees in their jurisdictions.
The resettlement agencies, in turn, conducted local refugee forums in which state and local
government officials and community stakeholders participated in planning for refugee
resettlement. The resettlement agencies reported the results of their outreach efforts to the
federal government.
In September 2019, the provisions governing these procedures changed when the
President issued Executive Order 13,888. In the Order, the President explained that
“[s]ome States and localities . . . have viewed existing consultation as insufficient, and
there is a need for closer coordination and a more clearly defined role for State and local
governments in the refugee resettlement process.” Order § 1. The President expressed the
view that state and local governments were in the best position to evaluate whether they
had the resources necessary for “sustainable resettlement” of refugees. Id. The President
thus concluded that with “limited exceptions,” the federal government “should resettle
refugees only in those jurisdictions in which both the State and local governments have
consented to receive refugees.” Id. (emphasis added) (the consent requirement).
The Order directed that the Secretary of State and the Secretary of Health and
Human Services create a process by which the consent of state and local governments “is
taken into account to the maximum extent consistent with law.” Id. § 2(b). Under that
process, if “either” a state or a locality does not consent, refugees will not be resettled
within the non-consenting jurisdiction
9
unless the Secretary of State concludes, following consultation with the
Secretary of Health and Human Services and the Secretary of Homeland
Security, that failing to resettle refugees within that State or locality would
be inconsistent with the policies and strategies established under 8 U.S.C. [§]
1522(a)(2)(B) and (C) or other applicable law. If the Secretary of State
intends to provide for the resettlement of refugees in a State or locality that
has not provided consent, then the Secretary shall notify the President of such
decision, along with the reasons for the decision, before proceeding.
Id. (emphasis added).
To implement the Order, the Department of State issued a “FY 2020 Notice of
Funding Opportunity for Reception and Placement Program” in November 2019 (the
Notice). The Notice provides, in relevant part:
For each state and locality where the applicant [resettlement agency]
proposes to resettle refugees during the award period, the applicant should
seek written consent for resettlement of refugees from the state governor’s
office and the chief executive officer of the local government (county or
county equivalent). [The Department of State’s Bureau of Population,
Refugees, and Migration (PRM)] will take into account such consents to the
maximum extent permitted by law, including Section 412(a) of the INA and
antidiscrimination laws, in deciding where to place refugees.
The Notice later explains that resettlement agencies must “document such consents or their
unavailability,” and that the Department of State will not authorize placement in states or
localities without such documentation. However, if these consents are not received before
the date that applications are due, resettlement agencies nonetheless may submit their
consent documentation on a rolling basis. The Notice does not explain how a resettlement
agency could seek review by the Secretary of a jurisdiction’s denial of consent.
Shortly after the Notice was issued, the plaintiffs, three resettlement agencies, filed
suit against the Secretaries of State, Health and Human Services, and Homeland Security,
as well as the President (collectively, the government) in federal district court in Maryland.
10
The complaint contains three claims: (1) that the Order and its implementation violate the
Refugee Act, 8 U.S.C. § 1522, because refugee resettlement under the Act “may not be
conditioned on either the state or the local government’s approval, much less both”; (2)
that the Secretaries’ implementation of the Order violates the Administrative Procedure
Act (APA), 5 U.S.C. § 706(2); and (3) that the Order and its implementation are
unconstitutional in violation of principles of federalism.
The district court granted the plaintiffs’ motion for a preliminary injunction. The
court concluded that the consent requirement amounted to a veto given to states and
localities over refugee resettlement within their borders. The court therefore held that the
consent requirement was contrary to the Refugee Act’s language, purpose, and history of
imposing a uniform process for resettling refugees nationwide. 4 The court also found that
the plaintiffs would suffer irreparable harm in the absence of a preliminary injunction,
citing the extreme difficulties that the resettlement agencies would face. The court
accordingly issued an order preliminarily enjoining nationwide the implementation of the
Order and Notice. The government now appeals.
4
The district court also held that the plaintiffs had raised “several valid concerns”
under the APA. With respect to the plaintiffs’ constitutional claim, the district court
concluded that the consent requirement raised the possibility of “federal pre-emption under
the Constitution.” Because we conclude that the plaintiffs are likely to succeed on their
statutory claim, we do not reach these additional bases for the district court’s injunction.
11
II.
We review the district court’s issuance of a preliminary injunction for abuse of
discretion. Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). A party seeking a
preliminary injunction must show that: (1) the party is likely to succeed on the merits of
the claim; (2) the party is likely to suffer irreparable harm in the absence of an injunction;
(3) the balance of hardships weighs in the party’s favor; and (4) the injunction serves the
public interest. Id. at 320 (citing Winter, 555 U.S. at 20). We will address each factor in
turn.
A.
The plaintiffs assert that the Order and Notice violate the Refugee Act, by allowing
states and localities to decide unilaterally whether to allow refugees to resettle in their
jurisdictions. In the plaintiffs’ view, by transforming the consultation process described in
the Act into an “opt-in” system, the Order and Notice grant states and localities more
authority over resettlement decisions than Congress intended. The plaintiffs also argue
that this opt-in system results in a patchwork of resettlement locations disassociated from
the priorities that Congress established in the Act.
In response, the government asserts that the Order and Notice merely implement the
Act’s requirement that the federal government “consult” with states and localities regarding
their ability to accept refugees and give significant weight to the views of affected
jurisdictions. The government contends that the Order and Notice do not require the
consent of states and localities as a precondition to the resettlement of refugees, but merely
call for this information to be provided as one factor that the Secretary of State (the
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Secretary) considers when determining where individuals will be placed. In further
defending the Order and Notice, the government relies heavily on the so-called “savings
clause” of the Order, which grants the Secretary under limited circumstances the discretion
to place refugees in a jurisdiction that has withheld consent. We disagree with the
government’s arguments.
We first review the Refugee Act’s text and structure, giving the statutory terms their
ordinary meaning. Navy Fed. Credit Union v. LTD Fin. Servs., LP, 972 F.3d 344, 356 (4th
Cir. 2020); Nat’l Elec. Mfrs. Ass’n v. U.S. Dep’t of Energy, 654 F.3d 496, 504 (4th Cir.
2011). We interpret the Act’s terms in the specific context in which they are used, as well
as in “the broader context of the statute as a whole.” Navy Fed. Credit Union, 972 F.3d at
357 (citation omitted); see also Sierra Club v. U.S. Dep’t of Interior, 899 F.3d 260, 291
(4th Cir. 2018). When Congress has included a statement of purpose in a statute, we read
the terms of the statute consistent with its expressed purpose. Smith v. City of Jackson, 544
U.S. 228, 257 (2005) (O’Connor, J., concurring in the judgment).
As noted above, this appeal centers on the question whether the opt-in system
established by the Order and implemented by the Notice conflicts with the Act’s
requirement that the federal government “consult” with resettlement agencies, states, and
localities (the consultation requirement). The Act includes several provisions that
collectively comprise the consultation requirement. First, the Act includes an express
statement of Congress’ intent that in providing refugee resettlement assistance,
resettlement agency “activities should be conducted in close cooperation and advance
consultation with State and local governments.” 8 U.S.C. § 1522(a)(1)(B)(iii) (emphasis
13
added). The Act also requires that the Secretary 5 “consult regularly (not less often than
quarterly) with State and local governments and private nonprofit voluntary agencies
concerning the sponsorship process and the intended distribution of refugees among the
States and localities before their placement in those states and localities.” § 1522(a)(2)(A)
(emphasis added).
The Act further directs that the Secretary “develop and implement, in consultation
with representatives of voluntary agencies and State and local governments, policies and
strategies for the placement and resettlement of refugees within the United States.”
§ 1522(a)(2)(B) (emphasis added). With respect to administration of the resettlement
program, the Act mandates that:
Such policies and strategies, to the extent practicable and except under such
unusual circumstances as the [Secretary] may recognize, shall—
(i) [e]nsure that a refugee is not initially placed or resettled in an area
highly impacted (as determined under regulations prescribed by the
[Secretary] after consultation with such agencies and governments)
by the presence of refugees or comparable populations unless the
refugee has a spouse, parent, sibling, son, or daughter residing in that
area,
(ii) provide for a mechanism whereby representatives of local
affiliates of voluntary agencies regularly (not less often than
quarterly) meet with representatives of State and local governments
to plan and coordinate in advance of their arrival the appropriate
placement of refugees among the various States and localities . . . .
5
Although the Act grants authority to the Director of the Office of Refugee
Resettlement, located within the Department of Health and Human Services, the Act also
authorizes the President to delegate administration of the refugee resettlement program to
another federal officer. 8 U.S.C. §§ 1521, 1522(b)(1)(B). Since 1981, the Department of
State has overseen the program. For the sake of simplicity, we will refer throughout this
opinion to the Secretary of State, rather than to the Director.
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§ 1522(a)(2)(C) (emphasis added). Thus, the Refugee Act contains three distinct
provisions addressing the requirement that the federal government “consult” with states,
localities, and resettlement agencies regarding the placement of refugees, as well as the
stated intent of Congress that resettlement agencies work cooperatively with state and local
governments.
In addition to the consultation requirement, the Refugee Act requires that policies
and strategies adopted by the Secretary “take into account” enumerated factors bearing on
the likelihood of successful resettlement of refugees in a particular jurisdiction. The
Secretary must consider:
(I) the proportion of refugees and comparable entrants in the population in
the area,
(II) the availability of employment opportunities, affordable housing, and
public and private resources (including educational, health care, and mental
health services) for refugees in the area,
(III) the likelihood of refugees placed in the area becoming self-sufficient
and free from long-term dependence on public assistance, and
(IV) the secondary migration of refugees to and from the area that is likely
to occur.
§ 1522(a)(2)(C)(iii). Consideration of these factors helps ensure that refugees are
successfully resettled in the United States and are able promptly to obtain self-sufficiency,
the ultimate goal of the Act. § 1522(a)(1)(A)–(B).
With this statutory framework in mind, we first focus on the ordinary meaning of
the requirement that the Secretary “consult” with resettlement agencies, localities, and
states. The ordinary meaning of the term “consult” is to seek an opinion or advice, or to
15
deliberate. Consult, Webster’s Third New International Dictionary, Unabridged (2020).
Notably, by imposing only a “consultation” requirement, Congress chose not to require the
“approval” or “consent” of the states and localities. Nor did Congress include any other
language in the Act suggesting that the opinions of states and localities should be given
dispositive weight in resettlement decisions. To the contrary, the Act clarifies in its
statement of purpose that resettlement agencies should work “in close cooperation and
advance consultation with State and local governments.” § 1522(a)(1)(B)(iii). 6 Use of the
term “cooperation” together with the term “consultation” strongly suggests that Congress
intended for the consultation requirement to involve a dialogue facilitating an exchange of
opinions among the affected parties.
The terms of the Order, however, do not require states and localities, before
withholding consent, to engage in any deliberation with other interested parties. Thus, on
its face, the consent requirement in the Order is inconsistent with the ordinary meaning of
the term “consultation” as expressed in the Act.
Moreover, our interpretation of the terms “consult” and “consultation” is consistent
with the broader context of the Refugee Act, which describes in detail the nature of the
relationship of the federal government, the resettlement agencies, and the states and
localities in making initial resettlement decisions. Enacted by Congress in 1980, the Act
was designed “to provide comprehensive and uniform provisions for the effective
6
In amending the Act in 1986, Congress explained that the consultation requirement
is “not intended to give States and localities any veto power over refugee placement
decisions, but rather to ensure their input into the process and to improve their resettlement
planning capacity.” See H.R. Rep. 99-132, at 19 (emphasis added).
16
resettlement and absorption” of refugees. Pub. L. No. 96-212, § 101, 94 Stat. 102(emphasis added). The Act thus places ultimate decision-making authority in the
Secretary, by empowering her to make refugee resettlement determinations based on her
assessment of the resources available to refugees in jurisdictions across the country. See 8
U.S.C. § 1522(a)(3) (“[T]he [Secretary] shall make a periodic assessment, based on refugee
population and other relevant factors, of the relative needs of refugees for assistance and
services under this subchapter and the resources available to meet such needs.”);
§ 1522(a)(2)(B) (“The [Secretary] shall develop and implement, [in consultation with
resettlement agencies, states, and localities], policies and strategies for the placement and
resettlement of refugees within the United States.” (emphasis added)). The consultation
requirement enables the Secretary to discern whether states and localities can resettle
refugees successfully according to the factors enumerated in the statute. See
§ 1522(a)(2)(C)(iii) (listing factors that the Secretary’s policies must “take into account”).
In contrast, the Order’s opt-in procedure shifts the decision-making center of gravity
from the federal government to states and localities. Without the Act’s required dialogue
before jurisdictions grant or withhold consent, the Secretary cannot timely evaluate what
resources states and localities could devote to refugee resettlement or whether a particular
jurisdiction might be suitable for resettlement. 7 Thus, the Order’s consent requirement
7
This problem persists irrespective of the Notice’s statement that before seeking
federal funding, local resettlement agency affiliates “will have consulted with state
governors’ offices, state refugee coordinators, local governments, and resettlement partners
in their communities in order to seek the consents of state and local governments and
ensure that the placement plans and sites are reasonable and appropriate” (emphasis added).
(Continued)
17
does not implement, but effectively overrides, the Act’s directive that resettlement
decisions be made by the Secretary based on an exchange of information among all
interested parties. 8
Nor does the Order require that states and localities base their consent decisions on
the resettlement criteria specified in the Refugee Act, namely, (1) the population of
refugees already in the area, (2) the availability of employment, housing, and other
resources in the area, (3) the likelihood that refugees placed in the area will become self-
sufficient, and (4) the likelihood of secondary migration to and from the jurisdiction in
question (the statutory criteria, or the enumerated factors). § 1522(a)(2)(C)(iii). To the
contrary, states and localities may withhold consent for any reason or for no reason at all, 9
and need not provide any explanation for their decision. Accordingly, by replacing the
flexible consultation process with an opt-in system, the Order effectively supplants the
statutory criteria that Congress chose to guide resettlement decisions made at the federal
level.
As discussed below, this provision does nothing more than impose on resettlement agencies
the obligation to lobby local and state governments to obtain their consent.
8
To the extent the government suggests that it will continue to consult with states
and localities irrespective of the jurisdictions’ consent, such an assertion strains credulity.
The intent of the Order is patently clear, namely, to avoid settling refugees in non-
consenting jurisdictions. We thus fail to see how or why the government would engage in
a dialogue with jurisdictions where refugees will not be resettled.
9
The Notice clarifies that state and local consent “may not be conditioned on
acceptance of certain refugees or on any other factor, such as refugees’ race, ethnicity,
religion, or national origin.”
18
As a result, a locality could be well-suited to receive refugees under the statutory
criteria, but nevertheless decline to opt-in to the resettlement program. Such a decision
withholding consent would be entirely divorced from the resettlement criteria set forth by
Congress in the statute. Conversely, a local jurisdiction could determine that it was able to
accept refugees according to the statutory factors yet be impeded from receiving refugees
if the state decided to withhold its consent. Again, the state’s decision in contravention of
the locality’s wishes could be based on reasons entirely unrelated to the criteria set forth in
the Act. This license to ignore the statutory criteria plainly is at odds with the careful
sequencing process established by Congress.
Such potential disregard of the statutory criteria by states and localities is not a mere
technicality but could undermine substantially the national resettlement program created
by Congress. For example, the Act requires that the Secretary consider the likelihood of
secondary migration, which occurs when refugees relocate elsewhere from their original
placement, usually to be closer to family or friends. § 1522(a)(2)(C)(iii)(IV). Secondary
migration has a negative impact on the government-based resources available to the
relocated refugees, as well as on resettlement agency affiliates in both the original and
destination jurisdictions whose funding has not been allocated properly. The affiliate in
the original jurisdiction loses its initial investment in the refugee’s housing and other
services, and the affiliate in the destination jurisdiction may not receive federal funding to
aid in the refugee’s resettlement. Recognizing this problem, Congress expressly directed
that the Secretary consider the possibility of secondary migration in determining whether
19
resettlement is appropriate in each jurisdiction. § 1522(a)(2)(C)(iii)(IV). Thus, prior to
the Order, refugees often were placed in localities close to family and friends.
The Order undermines this statutory priority of avoiding secondary migration by
creating a random patchwork of jurisdictions that have agreed to accept refugees. Thus, if
a locality with a significant refugee population from Country A withholds consent, family
members who were placed elsewhere may move from their original placement to live near
loved ones or other refugees from Country A in the non-consenting jurisdiction. Secondary
migration therefore is likely to occur irrespective of the jurisdiction’s failure to consent to
the refugee’s resettlement. Such resettlement migration in disregard of the statutory criteria
will place increased stress on the non-consenting jurisdiction’s resettlement infrastructure
that otherwise could have been avoided.
In addition to shifting significant decision-making authority away from the
Secretary, the Order also conflicts with the Refugee Act’s allocation of responsibility
between states and localities. Section 1522(a)(2)(D) of the Act provides:
With respect to the location of placement of refugees within a State, the
Federal agency administering subsection (b)(1) shall, consistent with such
policies and strategies and to the maximum extent possible, take into account
recommendations of the State (emphasis added).
This provision gives states a significant voice in the Secretary’s determination of which
jurisdictions within each state are best equipped to accept refugees.
Notably, the provision omits any reference whatsoever to localities, indicating
Congress’ intent to prioritize the recommendation of a state over its localities regarding the
20
distribution of refugees within the state. 10 This prioritization is consistent with
fundamental principles of state sovereignty, under which localities are political
subdivisions of their states and possess only the authority granted to them by their state
governments. See Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 607-08 (1991) (“[L]ocal
governmental units are created as convenient agencies for exercising such of the
governmental powers of the State as may be entrusted to them in its absolute discretion.”
(citation, internal quotation marks, and alterations omitted)); Reynolds v. Sims, 377 U.S.
533, 575 (1964) (cities and counties are political subdivisions of the states, and are
“subordinate governmental instrumentalities created by the State to assist in the carrying
out of state governmental functions” at the discretion of the state).
The Order, however, creates impermissible power shifts between states and their
localities, by purportedly enabling a locality to withhold consent and to override the state’s
decision to accept refugees. Again, this problem is not merely theoretical. At least three
localities within consenting states already have acted in an attempt to withhold consent to
refugee resettlement. As noted above, the Order’s purported grant of such decision-making
authority to local jurisdictions is at odds with the limited authority granted to localities by
their states, and with the Act’s mandate that the views of the state will be “take[n] into
10
We reject the government’s assertion that the consent requirement is supported
by the requirement of Section 1522(a)(2)(D) that the federal government consider a state’s
views “to the maximum extent possible.” By its plain terms, that provision applies to the
placement of refugees within the state’s borders, not to whether refugees will be resettled
in the state at all.
21
account” “to the maximum extent possible” regarding which localities will receive
refugees. § 1522(a)(2)(D).
The Notice also presumes, without justification, that executive officers of localities
possess authority to make such a consent determination. The Notice requires written
consent from the “chief executive officer of the local government (county or county
equivalent).” However, in the unlikely event that a state granted its localities the authority
to make such a decision withholding consent, that decision likely would rest with the
localities’ legislative, rather than executive, branch of government. See 1 John Martinez,
Local Government Law § 9:8 (Oct. 2020 update) (“Powers or functions conferred without
limitation on local government entities are deemed to be exercisable by the entity’s
legislative body and by no other authority.”). Thus, with its disordered shifts in
governmental power, the Order and Notice thrust the resettlement agencies into the middle
of a process that will place states and their localities in conflict with each other and with
the resettlement agencies themselves. This outcome plainly is at odds with the Act’s goal
of establishing a cooperative and collaborative relationship among states, localities, the
federal government, and resettlement agencies.
Finally, the Notice is inconsistent with Congress’ express purpose regarding
resettlement agencies’ allocation of resources. The Act states, in relevant part, that “[i]t is
the intent of Congress that in providing refugee assistance under this section . . . social
service funds should be focused on employment-related services, English-as-a-second-
language training (in nonwork hours where possible), and case-management services . . . .”
22
§ 1522(a)(1)(B)(ii). In contravention of this statutory purpose, the Notice re-focuses
resettlement agencies’ funds away from education, employment, and other services.
Under the Notice, resettlement agencies face the onerous task of seeking consent
from every state and locality where refugees might be placed. Put differently, the Notice
radically transforms the resettlement agencies’ focus by imposing on them the extreme
burden of lobbying the many states and localities to obtain their consent before refugees
will be placed in those jurisdictions. The record is clear that the resettlement agencies were
not designed for this role and have been forced to divert enormous resources from their
core social service missions to their new lobbying responsibilities. And, if a state or
locality declines to grant consent, local affiliates of the resettlement agencies will be unable
to settle refugees in those jurisdictions and will lose their federal funding, resulting in great
harm to the refugee resettlement infrastructure that has developed nationwide under the
Act’s umbrella.
Our conclusion regarding the many infirmities of the consent requirement is not
altered by the government’s reliance on the so-called “savings clause” of the Order, which
provides:
[I]f either a State or locality has not provided consent to receive refugees
under the Program, then refugees should not be resettled within that State or
locality unless the Secretary of State concludes, following consultation with
the Secretary of Health and Human Services and the Secretary of Homeland
Security, that failing to resettle refugees within that State or locality would
be inconsistent with the policies and strategies established under 8 U.S.C.
[§] 1522(a)(2)(B) and (C) or other applicable law. If the Secretary of State
intends to provide for the resettlement of refugees in a State or locality that
has not provided consent, then the Secretary shall notify the President of such
decision, along with the reasons for the decision, before proceeding.
23
Order § 2(b) (emphasis added).
While the savings clause offers a theoretical opportunity for the Secretary to
override the consent requirement, the exception stated in the savings clause is merely that
– theoretical. Neither the Order nor the Notice provide any mechanism whatsoever for
resettlement agencies, states, or localities to seek an exception to the consent requirement.
Contrary to the government’s assertion, it is patently clear from the Notice that a
resettlement agency’s application will not be considered if a proposed state or locality has
refused to consent to refugee resettlement within its borders.
Nor has the government explained any standards the Secretary would use to evaluate
whether “failing to resettle refugees within [a non-consenting] State or locality would be
inconsistent with the policies and strategies” of the Act. Order § 2(b) (emphasis added).
Nothing in the Act requires that refugees be resettled in a jurisdiction with the most
available resources relative to other locations. And given the many factors relevant to a
resettlement decision, it is not clear how a resettlement agency could prove that the inability
to resettle a refugee in any particular jurisdiction would be “inconsistent” with the Act.
Accordingly, without a procedure for invoking the savings clause or any standards for
applying it, we cannot conclude that the clause “saves” the Order from the infirmities
described above.
More fundamentally, however, we reject the government’s attempt to immunize the
Order from review through a savings clause which, if operational, would nullify the “clear
and specific” substantive provisions of the Order. City & Cnty. of S.F. v. Trump, 897 F.3d
1225, 1239 (9th Cir. 2018). The intent of the Order is clear. With “limited exceptions,”
24
refugees as a rule will be resettled “only in those jurisdictions in which both” the state and
the locality have consented to receive them. Order §§ 1-2. Given the Order’s stated goal
of limiting resettlement to consenting jurisdictions, the savings clause “does not and cannot
override [the Order’s] meaning.” 11 City & Cnty. of S.F., 897 F.3d at 1240. We thus agree
with the Ninth Circuit’s view that if a savings clause “precludes a court from examining
whether the Executive Order is consistent with law, judicial review is a meaningless
exercise.” Id. Therefore, we decline to adopt the government’s position that effectively
would nullify judicial review of the Order’s substance. Here, the Order includes a purely
theoretical savings clause, with no method or standard for invoking it, the application of
which would undermine the consent requirement itself. The President cannot immunize
his Order from scrutiny under such conditions.
At bottom, the consent requirement in the Order and Notice is “incompatible with
the overall statutory scheme governing” the refugee resettlement program. Kouambo v.
Barr, 943 F.3d 205, 213 (4th Cir. 2019). We therefore conclude that the plaintiffs are likely
to succeed on the merits of their statutory claim.
B.
We turn to consider the remaining Winter factors, namely, whether the plaintiffs are
likely to suffer irreparable harm in the absence of an injunction, whether the balance of
11
We disagree with the government’s assertion at oral argument that the consent of
the states and localities is just one factor the Secretary would consider when making
resettlement decisions. That position is belied by the text of the Order, which plainly
establishes an opt-in system, and requires the Secretary to defer to a jurisdiction’s
withholding of consent “to the maximum extent consistent with law.” Order § 2(b).
25
hardships weighs in their favor, and whether an injunction serves the public interest.
Pashby, 709 F.3d at 320. We conclude that all three factors support the district court’s
issuance of a preliminary injunction.
Although the government characterizes the harm that the plaintiffs allege as mere
“administrative inconvenience,” the record establishes that the Order and Notice will cause
much more significant and irreparable injuries. As described above, the burden of
obtaining consent from every state and local government is an onerous one, requiring
diversion of resources away from the resettlement agencies’ core missions. More
consequentially, however, the plaintiffs likely will be unable to sponsor refugees in non-
consenting jurisdictions. In the absence of federal funding for these refugees, local
affiliates of the plaintiffs in non-consenting jurisdictions likely will have to cease their
resettlement work. And, even if those local affiliates survive, the community connections
they have developed are likely to erode in non-consenting jurisdictions where refugees no
longer will be placed. These injuries would be significant and irreparable in the absence
of an injunction.
We also agree with the district court that the balance of hardships favors the
plaintiffs. The resettlement agencies face enormous burdens to comply with the Order and
Notice, as well as the likelihood of affiliates closing entirely in jurisdictions that refuse
consent. In contrast, under the district court’s injunction, the government must continue to
implement the refugee resettlement program according to the Act’s well-established
processes refined over several decades. These procedures include the federal government’s
robust consultation with states, localities, and resettlement agencies as required by the Act.
26
Given the risk of serious consequences should the Order and Notice take effect, we
similarly conclude that the public interest is served by maintaining the status quo during
the pendency of this litigation.
For these reasons, we hold that the district court did not abuse its discretion in
issuing a preliminary injunction against implementation of the Order and Notice.
C.
Finally, the government argues that the district court abused its discretion in issuing
a nationwide injunction that encompasses the six non-party resettlement agencies as well
as the plaintiffs. The government argues that the injunction is overbroad, because these
non-party resettlement agencies could have, but did not, challenge the Order and Notice.
We disagree with the government’s position.
District courts have broad discretion to craft remedies based on the circumstances
of a case, but likewise must ensure that “a preliminary injunction is no more burdensome
to the defendant than necessary to provide complete relief to the plaintiffs.” Roe v. Dep’t
of Def., 947 F.3d 207, 231 (4th Cir. 2020) (citations and internal quotation marks omitted).
A district court may issue a nationwide injunction so long as the court “mold[s] its decree
to meet the exigencies of the particular case.” Id. (quoting Trump v. Int’l Refugee
Assistance Project, 137 S. Ct. 2080, 2087 (2017)). And a nationwide injunction may be
appropriate when the government relies on a “categorical policy,” and when the facts
would not require different relief for others similarly situated to the plaintiffs. Id. at 232-
33.
27
We conclude that the district court did not abuse its discretion in issuing a
nationwide injunction. The refugee resettlement program by its nature impacts refugees
assigned to all nine resettlement agencies, which place refugees throughout the country.
Enjoining the Order and Notice only as to the plaintiff resettlement agencies would cause
inequitable treatment of refugees and undermine the very national consistency that the
Refugee Act is designed to protect.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
28