Immigration law professor: ‘Governors can’t ban refugees’

Indiana Tech Law School

FORT WAYNE, Ind. (WANE) – With more than half of the nation’s governors calling for a ban on any more Syrian refugees coming into their states, NewsChannel 15 wanted to know if they actually have the power to make such a call. According to Indiana Tech immigration law professor Steven Richardson, they don’t.

While immigration can easily get complicated, he said this issue really comes down to the constitution. According to the Supreme Court’s interpretation, immigration policy falls under the federal government’s authority and can’t be controlled by the states.

“If the federal government determines that they are going to resettle Syrian refugees or refugees from any nation, then they can do so without any go ahead from the states,” Richardson said.

Both the state and federal governments provide funding to refugee resettlement agencies across the country. Richardson said the only thing the governors can do is deny that funding,

“That’s not to say that they have no power, but what funding they give is relatively minimal in the grand scheme of things,” Richardson said.

While Richardson is confident governors across the country are well aware of the policy, he has several ideas as to why so many of them are coming out against more refugees coming to the U.S.

“States are always trying to claw out immigration authorities for themselves, so it may be that this is an attempt to gain some measure of control. It may simply be that it’s political theater designed to ensure that their constituents will at least see that they offered some degree of resistance even when they had no authority to do so,” Richardson said.

Since the state and federal governments work together with resettlement agencies, Indiana Governor Mike Pence argues that gives him the right to ban the refugees.

“I’m very confident that we have the legal authority to suspend the program, and I believe it’s simply the right thing to do,” Pence said.

While the majority of governors calling for the bans are Republican, Richardson doesn’t think this is necessarily a political move.

“Much like right after 9/11, people are scared and they don’t know how to react. This is simply one knee-jerk reaction, I think,” Richardson said. “I think it’s less political than it is emotional. I think that people are simply reacting rather than consciously acting. Quite frankly, I think people are scared. I don’t think this is a statement of state policy or any sort of hostility within those states. I think it’s simply an emotional reaction in regards to the atrocities in Paris and Beirut and all of the other assorted attacks that happened on that particular day.”

Before the Paris attacks, President Obama had already agreed to letting in 10,000 Syrian refugees. Richardson explained how they have already been in camps for several years.

“Unlike the refugees you see streaming into the borders into Europe right now, the refugees coming into this program would be coming from the United Nations High Commissioner for Refugees. These are people who have already been vetted to demonstrate that they are in fact in fear of their lives and who are then being sent to the U.S. for resettlement,” Richardson said.

Richardson said the vetting process is extensive and it’s unlikely a refugee with ISIS ties could make it through.

“One could be coached, but this is something that would have to be put into place before ISIS even came into existence. Many of these refugees would have been the earliest ones in camps and thus would have been people who were initially fleeing the civil war in Syria and not the attacks by ISIS. To assume that these people are terrorists who are being established by ISIS would require that they have come into the camps on ISIS’s behalf before ISIS even existed. That’s not to say that they couldn’t be associated with some other radical group, but to attribute them specifically to ISIS would seem improbable,” Richardson said.

While Richardson acknowledges the understandable fears coming in the days after the Paris attacks, he wants to remind people why the refugee resettlement program exists in the first place.

“The entire point of the refugee system that we have internationally was to prevent something like the Holocaust from ever happening again. The whole point was that we would never again allow a particular religious minority to be scapegoated or to be persecuted. So, I think in light of the history of our refugee policy, we should be very careful about singling out any particular religious group and stating that they should stay where they came from,” Richardson said.

However, Governor Pence said it’s not worth the risk during such an uncertain and unstable time.

“The fact that an individual who moved out of Syria through the refugee program into central Europe was involved in the horrific terrorist attack in Paris, I think, is cause for our state, our country, and I believe other countries to pause this program and to thoroughly reevaluate the screening processes that are in place,” Pence said. Indiana has a long tradition of opening our arms, homes, and charities to refugees from all over the world, and continues to go forward to this very day. It will be something that we cherish. This is really something that I think is an appropriate response to what occurred in Paris and the fact the director of the FBI, a month ago, testified before Congress that there were significant gaps in the background checks that we were able to perform on people who were applying for resettlement through the Syrian refugee program in this country. I just think the proper thing for us to do is exercise Indiana’s legal authority to suspend this program. That will remain the policy unless and until we receive the absolute assurance that proper security measures have been put into place. I think it’s incumbent on the Congress to pause this program and thoroughly reevaluate and resource this program in a way that ensures the safety of the people of Indiana and the people of the United States is secure.”

Even if President Obama decides to keep Syrian refugees from resettling in the specific states whose governors are calling for bans, Richardson said it’s not a long-term solution. He also expects the program to continue across the country.

“Once the refugees are resettled in a given state, they have the right to freely travel. So, they can choose to move later on to the states that had initially said that they won’t accept them,” Richardson said.

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