U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:19-cv-03346-PJM

STAYED

HIAS, Inc. et al v. Trump et al Assigned to: Judge Peter J. Messitte Case in other court: USCA, 20-01160 Cause: 05:706 Judicial Review of Agency Action

Date Filed: 11/21/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff HIAS, Inc.

represented by Justin B Cox International Refugee Assistance Project P.O. Box 170208 Atlanta, GA 30317 (678) 404-9119 Email: jcox@refugeerights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Shu-yeng Austin International Refugee Assistance Project 1 Battery Park Plaza New York, NY 10004 5162960688 Fax: 2125334598 Email: kaustin@refugeerights.org PRO HAC VICE ATTORNEY TO BE NOTICED

Linda B Evarts International Refugee Assistant Project One Battery Park Plaza New York, NY 10004 5168381655 Fax: 9299998115 Email: levarts@refugeerights.org PRO HAC VICE

Plaintiff Church World Service, Inc.

ATTORNEY TO BE NOTICED
Mariko Hirose International Refugee Assistance Project One Battery Park Plaza 4th Floor New York, NY 10004 5167014620 Fax: 9299998115 Email: mhirose@refugeerights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S Keaney International Refugee Assistance Project PO Box 2291 Fair Oaks, CA 95628 9165466125 Email: mkeaney@refugeerights.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Justin B Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Shu-yeng Austin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linda B Evarts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S Keaney

Plaintiff
Lutheran Immigration & Refugee Service, Inc.

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Justin B Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Shu-yeng Austin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linda B Evarts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump in his official capacity as President of the United States
Defendant

represented by Bradley Philip Humphreys United States Department of Justice 1100 L St. NW Washington, DC 20005 2023050878 Fax: 2026168470 Email: bradley.humphreys@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R. Pompeo in his official capacity as Secretary of State
Defendant Alex M. Azar, II in his official capacity as Secretary of Health and Human Services
Defendant Chad Wolf in his official capacity as Acting Secretary of Homeland Security

represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Interested Party James Nelson Purcell, Jr.
Interested Party Phyllis Elliot Oakley

represented by Steven H Schulman Akin Gump Strauss Hauer and Feld LLP 2001 K Street, NW Washington, DC 20006 12028874071 Fax: 12028874288 Email: sschulman@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica M Weisel Akin Gump Strauss Hauer and Feld LLP 1999 Avenue of the Stars #600 Los Angeles, CA 90067 3102291000 Fax: 3102291001 Email: jweisel@akingump.com PRO HAC VICE ATTORNEY TO BE NOTICED

Interested Party Arthur E. Dewey
Interested Party Anne Claire Richard
Amicus State of Maryland, et al.

represented by Steven H Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica M Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Steven H Schulman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica M Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jeffrey Paul Dunlap Maryland Office of the Attorney General 200 Saint Paul Place Baltimore, MD 21202 410-576-7906 Email: jpdunlap@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jasleen K Singh California Department of Justice 300 S. Spring St. Los Angeles, CA 90013 2132696622 Fax: 2138977605 Email: jasleen.singh@doj.ca.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Jeff VanDam Office of the Illinois Attorney

Amicus Cities, Mayors, and the United States Conference of Mayors
Amicus

General 100 W. Randolph St. Chicago, IL 60601 3128141188 Fax: 3128143212 Email: jvandam@atg.state.il.us PRO HAC VICE ATTORNEY TO BE NOTICED
Vilma R Palma-Solana Office of the Attorney General of California 300 S. Spring St. Ste. 1702 Los Angeles, CA 90013 2132696385 Fax: 2138977605 Email: Vilma.Solana@doj.ca.gov PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Suzanne Sangree City of Baltimore Law Department Senior Public Safety Counsel City Hall Room 109 100 N Holliday St Baltimore, MD 21202 14433882190 Fax: 14105390536 Email: suzanne.sangree2@baltimorecity.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle L Goldstein Office of the Los Angeles City Attorney 200 N. Spring St. 14th Fl. Los Angeles, CA 90012 2139781868 Fax: 2139782286 Email: danielle.goldstein@lacity.org PRO HAC VICE ATTORNEY TO BE NOTICED

Jewish Council For Public Affairs

represented by Michael E Tucci Stinson Leonard Street LLP 1775 Pennsylvania Avenue, NW Suite 800 Washington, DC 20006-4605 12027283010 Fax: 12025729964 Email: michael.tucci@stinson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/21/2019 11/21/2019 11/21/2019
11/21/2019

# Docket Text

COMPLAINT for Declaratory & Injunctive Relief against All

1

Defendants ( Filing fee $ 400 receipt number 0416-8362113.), filed

by HIAS, Inc., CHURCH WORLD SERVICE, Inc., Lutheran

Immigration & Refugee Service, Inc.. (Attachments: # 1 Civil

Cover Sheet, # 2 Summons)(Cox, Justin) (Entered: 11/21/2019)

2 Local Rule 103.3 Disclosure Statement by HIAS, Inc. (Cox, Justin) (Entered: 11/21/2019)

3 Local Rule 103.3 Disclosure Statement by CHURCH WORLD SERVICE, Inc. identifying Other Affiliate Opening Doors, Inc., Other Affiliate New American Pathways, Other Affiliate RefugeeOne, Other Affiliate Exodus Refugee/Immigration, Inc., Other Affiliate Kentucky Refugee Ministries, Inc., Other Affiliate Bethany Refugee Services, Other Affiliate Lutheran Family Services of Nebraska, Other Affiliate Ascentria Care Alliance, Other Affiliate Journeys End Refugee Services, Inc., Other Affiliate Community Refugee and Immigration Services, Other Affiliate Sponsors Organized to Assist Refugees, Other Affiliate Refugee Services of Texas, Inc. for CHURCH WORLD SERVICE, Inc..(Cox, Justin) (Entered: 11/21/2019)

4 Local Rule 103.3 Disclosure Statement by Lutheran Immigration & Refugee Service, Inc. identifying Other Affiliate Lutheran Family Services of Nebraska, Other Affiliate Refugee Services of Texas, Inc., Other Affiliate Ascentria Community Services, Inc., Other Affiliate Bethany Christian Services of Michigan, Other Affiliate Bethany Christian Services of Central Pennsylvania, Other Affiliate Canopy of Northwest Arkansas, Other Affiliate Crittenton Services for Children and Families, Other Affiliate Inspiritus, Other Affiliate International Christian Adoption, Other Affiliate Lutheran Community Services Northwest, Other Affiliate Lutheran Family

11/21/2019 11/21/2019 11/21/2019 11/21/2019

Services of the Rocky Mountains, Other Affiliate Lutheran Services Carolinas, Other Affiliate Lutheran Services Florida, Other Affiliate Lutheran Social Service of Minnesota, Other Affiliate Lutheran Social Services of NE Florida, Other Affiliate Lutheran Social Services of North Dakota, Other Affiliate Lutheran Social Services of South Dakota, Other Affiliate Lutheran Social Services of the National Capital Area, Other Affiliate Lutheran Social Services of the Southwest, Other Affiliate Lutheran Social Services of Wisconsin and Upper Michigan, Other Affiliate Samaritas, Other Affiliate Mohawk Valley Resource Center for Refugees for Lutheran Immigration & Refugee Service, Inc..(Cox, Justin) (Entered: 11/21/2019)

5 MOTION to Appear Pro Hac Vice for Melissa S. Keaney (Filing fee $100, receipt number 0416-8362183.) by CHURCH WORLD SERVICE, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc.(Cox, Justin) (Entered: 11/21/2019)

6 MOTION to Appear Pro Hac Vice for Mariko Hirose (Filing fee $100, receipt number 0416-8362202.) by CHURCH WORLD SERVICE, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc.(Cox, Justin) (Entered: 11/21/2019)

7 MOTION to Appear Pro Hac Vice for Kathryn S. Austin (Filing fee $100, receipt number 0416-8362219.) by CHURCH WORLD SERVICE, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc.(Cox, Justin) (Entered: 11/21/2019)

8 QC NOTICE: 1 Complaint, filed by HIAS, Inc., Church World Service, Inc., Lutheran Immigration & Refugee Service, Inc. was filed incorrectly. **The following attachments or exhibits are missing - Summons were provided for only the named Defendant. If the defendant is either an agency of the United States or an officer or employee of the United States, you must serve both the U.S. Attorney General and the U.S. Attorney for the District of Maryland, as well as each defendant. Please electronically submit a summons for each required party, using the Civil event "Supplemental" located under "Other Filings", and then "Other Documents", and nd link

Proposed summons to 1 (Entered: 11/21/2019)

Complaint. (heps, Deputy Clerk)

11/21/2019 11/21/2019 11/21/2019 11/21/2019 11/22/2019
11/22/2019 11/22/2019
11/22/2019 11/22/2019

9 Supplemental to 1 Complaint, filed by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc. Proposed Summonses (Cox, Justin) (Entered: 11/21/2019)
10 MEMORANDUM ORDER to Counsel of Record. Signed by Judge Peter J. Messitte on 11/21/2019. (heps, Deputy Clerk) (Entered: 11/21/2019)
11 Summons Issued 60 days as to Alex M. Azar, II, Michael R. Pompeo, Donald J. Trump, Chad Wolf, U.S. Attorney and U.S. Attorney General(heps, Deputy Clerk) (Entered: 11/21/2019)
12 NOTICE by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc. re 10 Order (Cox, Justin) (Entered: 11/21/2019)
13 PAPERLESS ORDER granting 5 Motion to Appear Pro Hac Vice on behalf of Melissa S Keaney. Directing attorney Melissa S Keaney to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-passwordreset. Signed by Clerk on 11/22/2019. (srd, Deputy Clerk) (Entered: 11/22/2019)
14 QC NOTICE: 6 Motion to Appear Pro Hac Vice filed by HIAS, Inc., Church World Service, Inc., Lutheran Immigration & Refugee Service, Inc. needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srd, Deputy Clerk) (Entered: 11/22/2019)
15 PAPERLESS ORDER granting 7 Motion to Appear Pro Hac Vice on behalf of Kathryn Austin. Directing attorney Kathryn Austin to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 11/22/2019. (srd, Deputy Clerk) (Entered: 11/22/2019)
16 CORRECTED MOTION to Appear Pro Hac Vice for Mariko Hirose by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc.. The fee has already been paid.(Cox, Justin) (Entered: 11/22/2019)
17 MOTION to Appear Pro Hac Vice for Linda Evarts (Filing fee $100, receipt number 0416-8366768.) by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc.(Cox, Justin) (Entered: 11/22/2019)

11/22/2019 18

MOTION for Preliminary Injunction of Executive Order 13888 by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc. (Attachments: # 1 Exhibit Index, # 2 Exhibit A (Exec. Order), # 3 Exhibit B (Funding Notice), # 4 Exhibit C (Hetfield Decl.), # 5 Exhibit D (McCullough Decl.), # 6 Exhibit E (Vignarajah Decl.), # 7 Exhibit F (Schwartz Decl.), # 8 Exhibit G (Carey Decl.), # 9 Exhibit H (Tr. of WH Press Call on Refugee Policy), # 10 Exhibit I (Revision History of 8 U.S.C. § 1522(a)), # 11 Exhibit J (DOS Allocations Handbook), # 12 Exhibit K (SCORR Letter to PRM & ORR), # 13 Exhibit L (WH Fact Sheet on Refugee Policy))(Cox, Justin) (Entered: 11/22/2019)

11/22/2019

19 AFFIDAVIT of Service for Process & ECF No. 10 served on U.S. Attorney on 11/22/19, filed by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc..(Cox, Justin) (Entered: 11/22/2019)

11/25/2019

20 PAPERLESS ORDER granting 16 Corrected Motion to Appear Pro Hac Vice on behalf of Mariko Hirose. Directing attorney Mariko Hirose to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-passwordreset. Signed by Clerk on 11/25/2019. (srd, Deputy Clerk) (Entered: 11/25/2019)

11/25/2019

21 PAPERLESS ORDER granting 17 Motion to Appear Pro Hac Vice on behalf of Linda B Evarts. Directing attorney Linda B Evarts to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 11/25/2019. (srd, Deputy Clerk) (Entered: 11/25/2019)

11/25/2019

22 NOTICE of Appearance by Bradley Philip Humphreys on behalf of Alex M. Azar, II, Michael R. Pompeo, Donald J. Trump, Chad Wolf (Humphreys, Bradley) (Entered: 11/25/2019)

11/26/2019

23 NOTICE by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc. re 10 Order & the Parties' Availability for a Telephonic Scheduling Conference (Cox, Justin) (Entered: 11/26/2019)

11/26/2019

24 AFFIDAVIT of Service for Summons, Complaint, Civil Cover Sheet, Corporate Disclosure Statements, Motions for Admission Pro Hac Vice, Court Order served on President Donald Trump, Secretary of State Michael Pompeo, Secretary of Health and Human Services Alex Azar, Acting Secretary of Homeland Security Chad Wolf, William P. Barr on November 21, 2019, filed by Church

World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc..(Cox, Justin) (Entered: 11/26/2019)

11/26/2019

25 NOTICE of Appearance by Melissa S Keaney on behalf of All Plaintiffs (Keaney, Melissa) (Entered: 11/26/2019)

11/26/2019

26 CERTIFICATE OF SERVICE by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc. (Cox, Justin) (Entered: 11/26/2019)

11/26/2019

27 NOTICE of Appearance by Kathryn Shu-yeng Austin on behalf of All Plaintiffs (Austin, Kathryn) (Entered: 11/26/2019)

11/26/2019

28 Telephone Conference (re status of case) held on 11/26/2019 for 30 minutes before Judge Peter J. Messitte. (jmhs, Chambers) (Entered: 11/26/2019)

11/26/2019 29

MEMORANDUM ORDER to Counsel of Record regarding briefing schedule. Signed by Judge Peter J. Messitte on 11/26/2019. (heps, Deputy Clerk) (Entered: 11/27/2019)

11/27/2019 30

NOTICE of Appearance by Mariko Hirose on behalf of Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc. (Hirose, Mariko) (Entered: 11/27/2019)

12/06/2019

31 NOTICE by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc. RE Amici Curiae (Keaney, Melissa) (Entered: 12/06/2019)

12/09/2019

32 MEMORANDUM ORDER to Counsel of Record. Signed by Judge Peter J. Messitte on 12/9/2019. (heps, Deputy Clerk) (Entered: 12/09/2019)

12/13/2019

33 Amicus Curiae APPEARANCE entered by Steven H Schulman on behalf of Arthur E. Dewey, James Nelson Purcell, Jr, Anne Claire Richard(Schulman, Steven) (Entered: 12/13/2019)

12/13/2019

34 MOTION to Appear Pro Hac Vice for Jessica M. Weisel (Filing fee $100, receipt number 0416-8404523.) by Arthur E. Dewey, James Nelson Purcell, Jr, Anne Claire Richard(Schulman, Steven) (Entered: 12/13/2019)

12/13/2019

35 MOTION for Leave to File Brief of Amici Curiae Former State Department Officials by Arthur E. Dewey, James Nelson Purcell,

Jr, Anne Claire Richard (Attachments: # 1 Amicus Brief of

12/13/2019 12/13/2019 12/13/2019 12/13/2019 12/13/2019 12/13/2019 12/13/2019 12/13/2019
12/13/2019

Former State Department Officials)(Schulman, Steven) (Entered: 12/13/2019)
36 NOTICE by State of Maryland, et al. re 18 MOTION for Preliminary Injunction of Executive Order 13888 Brief of Amici States (Dunlap, Jeffrey) (Entered: 12/13/2019)
37 (FILED IN ERROR BY COUNSEL) Amicus Curiae APPEARANCE entered by Jeffrey Paul Dunlap on behalf of State of Maryland, et al.(Dunlap, Jeffrey) Modified on 12/13/2019 (heps, Deputy Clerk). (Entered: 12/13/2019)
38 Amicus Curiae APPEARANCE entered by Jeffrey Paul Dunlap on behalf of State of Maryland, et al.(Dunlap, Jeffrey) (Entered: 12/13/2019)
39 MOTION to Appear Pro Hac Vice for Vilma Palma-Solana (Filing fee $100, receipt number 0416-8405053.) by State of Maryland, et al.(Dunlap, Jeffrey) (Entered: 12/13/2019)
40 MOTION to Appear Pro Hac Vice for Jasleen K. Singh (Filing fee $100, receipt number 0416-8405089.) by State of Maryland, et al.(Dunlap, Jeffrey) (Entered: 12/13/2019)
41 MOTION to Appear Pro Hac Vice for Jeff VanDam (Filing fee $100, receipt number 0416-8405103.) by State of Maryland, et al.(Dunlap, Jeffrey) (Entered: 12/13/2019)
42 NOTICE of Appearance by Suzanne Sangree on behalf of Cities, Mayors, and the United States Conference of Mayors (Sangree, Suzanne) (Entered: 12/13/2019)
43 MOTION for Leave to File Brief of Amici Curiae Cities, Mayors, and the United States Conference of Mayors by Cities, Mayors, and the United States Conference of Mayors (Attachments: # 1 Attachment Proposed Brief of Amici Curiae Cities, Mayors, and the United States Conference of Mayors in Support of Plaintiffs' Motion for Preliminary Injunction)(Sangree, Suzanne) (Entered: 12/13/2019)
44 MOTION to Appear Pro Hac Vice for Danielle L. Goldstein (Filing fee $100, receipt number 0416-8405198.) by Cities, Mayors, and the United States Conference of Mayors(Sangree, Suzanne) (Entered: 12/13/2019)

12/13/2019
12/16/2019 12/16/2019 12/16/2019 12/16/2019 12/16/2019 12/16/2019

45 MOTION for Leave to File Motion of Amici Jewish Council for Public Affairs, Catholic Charities USA, The Greater Milwaukee Synod of the Evangelical Lutheran Church In America, The St. Louis Jewish Community Relations Council, and Other Faith-Based Organizations for Leave to File Amicus Brief in Support of Plaintiffs' Motion for Preliminary Injunction by Jewish Council For Public Affairs (Attachments: # 1 Amicus Brief, # 2 Text of Proposed Order)(Tucci, Michael) (Entered: 12/13/2019)
46 PAPERLESS ORDER granting 34 Motion to Appear Pro Hac Vice on behalf of Jessica M Weisel. Directing attorney Jessica M Weisel to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 12/16/2019. (srd, Deputy Clerk) (Entered: 12/16/2019)
47 PAPERLESS ORDER granting 39 Motion to Appear Pro Hac Vice on behalf of Vilma Palma-Solana. Directing attorney Vilma PalmaSolana to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 12/16/2019. (srd, Deputy Clerk) (Entered: 12/16/2019)
48 PAPERLESS ORDER granting 40 Motion to Appear Pro Hac Vice on behalf of Jasleen Singh. Directing attorney Jasleen Singh to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 12/16/2019. (srd, Deputy Clerk) (Entered: 12/16/2019)
49 PAPERLESS ORDER granting 41 Motion to Appear Pro Hac Vice on behalf of Jeff VanDam. Directing attorney Jeff VanDam to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 12/16/2019. (srd, Deputy Clerk) (Entered: 12/16/2019)
50 QC NOTICE: 44 Motion to Appear Pro Hac Vice filed by Cities, Mayors, and the United States Conference of Mayors needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srd, Deputy Clerk) (Entered: 12/16/2019)
51 CORRECTED MOTION to Appear Pro Hac Vice for Danielle L. Goldstein by Cities, Mayors, and the United States Conference of Mayors. The fee has already been paid.(Sangree, Suzanne) (Entered: 12/16/2019)

12/17/2019

53 MEMORANDUM ORDER Granting 35 , 43 , and 45 Motion for Leave to File Amici curiae briefs.. Signed by Judge Peter J. Messitte on 12/16/2019. (heps, Deputy Clerk) (Entered: 12/18/2019)

12/18/2019

52 PAPERLESS ORDER granting 51 Corrected Motion to Appear Pro Hac Vice on behalf of Danielle L Goldstein. Directing attorney Danielle L Goldstein to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 12/18/2019. (srd, Deputy Clerk) (Entered: 12/18/2019)

12/20/2019 54

RESPONSE in Opposition re 18 MOTION for Preliminary Injunction of Executive Order 13888 filed by Alex M. Azar, II, Michael R. Pompeo, Donald J. Trump, Chad Wolf. (Attachments: # 1 Exhibit)(Humphreys, Bradley) (Entered: 12/20/2019)

12/23/2019

55 NOTICE of Appearance by Linda B Evarts on behalf of Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc. (Evarts, Linda) (Entered: 12/23/2019)

12/24/2019 56

MOTION to Strike the Veprek Declaration (ECF No. 54-1) by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc.(Cox, Justin) (Entered: 12/24/2019)

12/24/2019

57 MOTION to Expedite Briefing on Plaintiffs' Motion to Strike by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc. (Attachments: # 1 Text of Proposed Order)(Cox, Justin) (Entered: 12/24/2019)

12/26/2019

58 ORDER granting 57 Motion to Expedite. Signed by Judge Peter J. Messitte on 12/26/2019. (kns, Deputy Clerk) (Entered: 12/26/2019)

12/30/2019 59

MEMORANDUM ORDER to Counsel of Record regarding Hearing on Motion for Preliminary Injunction. Signed by Judge Peter J. Messitte on 12/30/2019. (heps, Deputy Clerk) (Entered: 12/30/2019)

01/03/2020

60 REPLY to Response to Motion re 18 MOTION for Preliminary Injunction of Executive Order 13888 & the Funding Notice filed by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc..(Cox, Justin) (Entered: 01/03/2020)

01/03/2020

61 RESPONSE to Motion re 56 MOTION to Strike the Veprek Declaration (ECF No. 54-1) filed by Alex M. Azar, II, Michael R. Pompeo, Donald J. Trump, Chad Wolf.(Humphreys, Bradley) (Entered: 01/03/2020)

01/06/2020 62

NOTICE by Church World Service, Inc., HIAS, Inc., Lutheran
Immigration & Refugee Service, Inc. re 59 Order - Joint Notice Regarding Oral Argument (Cox, Justin) (Entered: 01/06/2020)

01/07/2020

63 REPLY to Response to Motion re 56 MOTION to Strike the Veprek Declaration (ECF No. 54-1) filed by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc.. (Attachments: # 1 Exhibit A - Oct. 24, 2019 Letter to Defendant Agencies)(Cox, Justin) (Entered: 01/07/2020)

01/08/2020

64 Motions Hearing held on 1/8/2020 re 56 Plaintiffs' MOTION to Strike the Veprek Declaration (ECF No. 54-1) - Argued -

TAKEN UNDER ADVISEMENT; and 18 Plaintiff's MOTION for Preliminary Injunction of Executive Order 13888 Argued - TAKEN UNDER ADVISEMENT; Oral Order of the Court DIRECTING Plaintiffs Counsel to Submit a Proposed Order of Preliminary Injunction and Defendants Counsel to Submit a Proposed Order denying Plaintiffs Motion for Preliminary Injunction by noon on Friday, January 10, 2020, all as stated by and before Judge Peter J. Messitte. (Court Reporter: Renee Ewing) (tds, Deputy Clerk) (Entered: 01/08/2020)

01/09/2020

65 NOTICE by Alex M. Azar, II, Michael R. Pompeo, Donald J.

Trump, Chad Wolf re 18 MOTION for Preliminary Injunction of Executive Order 13888 (Proposed

Order) (Attachments: # 1 Text of Proposed Order)(Humphreys, Bradley) (Entered: 01/09/2020)

01/10/2020

66 NOTICE by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc. re 64 Motion Hearing,, 18

MOTION for Preliminary Injunction of Executive Order 13888 & and the Funding Notice (Attachments: # 1 Text of Proposed Order)(Cox, Justin) (Entered: 01/10/2020)

01/10/2020

67 NOTICE by Church World Service, Inc., HIAS, Inc., Lutheran Immigration & Refugee Service, Inc. re Texas Veto (Attachments: # 1 Exhibit A - Texas Letter)(Keaney, Melissa) (Entered: 01/10/2020)

01/15/2020 68

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 1/15/2020. (Attachments: # 1 Attachment)(heps, Deputy Clerk) (Entered: 01/15/2020)

01/15/2020 69

ORDER Granting 18 Motion for Preliminary Injunction of Executive Order 13888. Signed by Judge Peter J. Messitte on 1/15/2020. (heps, Deputy Clerk) (Entered: 01/15/2020)

01/16/2020

70 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 01/08/2020, before Judge Messitte. Court Reporter/Transcriber Renee Ewing, Telephone number 301-3443227. Total number of pages filed: 128. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 2/6/2020. Redacted Transcript Deadline set for 2/18/2020. Release of Transcript Restriction set for 4/15/2020.(re, Court Reporter) (Entered: 01/16/2020)

01/21/2020 71

Consent MOTION for Extension of Time to File Answer re 1
Complaint, or Other Responsive Pleading by Alex M. Azar, II, Michael R. Pompeo, Donald J. Trump, Chad Wolf (Attachments: # 1 Text of Proposed Order)(Humphreys, Bradley) (Entered: 01/21/2020)

01/22/2020

72 ORDER granting 71

Motion for Extension of Time to Answer

TO 1 Complaint; Alex M. Azar, II answer due 2/4/2020; Michael R. Pompeo answer due 2/4/2020; Donald J. Trump answer due 2/4/2020; Chad Wolf answer due 2/4/2020.. Signed by Judge Peter J. Messitte on 1/22/2020. (heps, Deputy Clerk) (Entered: 01/22/2020)

02/04/2020 73

Consent MOTION for Extension of Time to File Answer re 1
Complaint, or Other Responsive Pleading by Alex M. Azar, II, Michael R. Pompeo, Donald J. Trump, Chad Wolf (Attachments:

# 1 Text of Proposed Order)(Humphreys, Bradley) (Entered: 02/04/2020)

02/05/2020

74 ORDER Granting 73 Motion for Extension of Time to Answer Alex M. Azar, II answer due 2/18/2020.. Signed by Judge Peter J. Messitte on 2/5/2020. (heps, Deputy Clerk) (Entered: 02/05/2020)

02/11/2020 75

NOTICE OF INTERLOCUTORY APPEAL as to 69 Order on

Motion for Preliminary Injunction, 68 Memorandum Opinion by Alex M. Azar, II, Michael R. Pompeo, Donald J. Trump, Chad Wolf. (Humphreys, Bradley) (Entered: 02/11/2020)

02/12/2020 76

Transmission of Notice of Appeal and Docket Sheet to US Court of
Appeals re 75 Notice of Interlocutory Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(nu, Deputy Clerk) (Entered: 02/12/2020)

02/13/2020

77 USCA Case Number 20-1160 for 75 Notice of Interlocutory Appeal filed by Michael R. Pompeo, Chad Wolf, Alex M. Azar, II, Donald J. Trump. Case Manager - Jeffrey S. Neal (nus, Deputy Clerk) (Entered: 02/13/2020)

02/14/2020

78 Consent MOTION to Stay Proceedings by Alex M. Azar, II, Michael R. Pompeo, Donald J. Trump, Chad Wolf (Attachments: # 1 Text of Proposed Order)(Humphreys, Bradley) (Entered: 02/14/2020)

02/14/2020

79 ORDER Granting 78 Motion to Stay Proceedings pending final resolution of Defendant's appeal. Signed by Judge Peter J. Messitte on 2/14/2020. (heps, Deputy Clerk) (Entered: 02/14/2020)

01/08/2021

80 JUDGMENT of USCA affirming the decision of the district court

as to 75 Notice of Interlocutory Appeal filed by Michael R. Pompeo, Chad Wolf, Alex M. Azar, II, Donald J. Trump (Attachments: # 1 Notice of Judgment, # 2 Published Opinion)(jj2s, Deputy Clerk) (Entered: 01/08/2021)

03/02/2021

81 MANDATE of USCA issued as to 75 Notice of Interlocutory Appeal filed by Michael R. Pompeo, Chad Wolf, Alex M. Azar, II, Donald J. Trump (nus, Deputy Clerk) (Entered: 03/02/2021)

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Case 8:19-cv-03346-PJM Document 69 Filed 01/15/20 Page 2 of 2

 
 Case 8:19-cv-03346-PJM Document 1 Filed 11/21/19 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION

HIAS, INC. 1300 Spring Street, Suite 500 Silver Spring, MD 20910 Montgomery County;
CHURCH WORLD SERVICE, INC. 475 Riverside Drive, Suite 700 New York, NY 10115;
LUTHERAN IMMIGRATION AND REFUGEE SERVICE, INC. 700 Light Street Baltimore, MD 21230 City of Baltimore;
Plaintiffs,
– versus –
DONALD TRUMP, in his official capacity as President of the United States 1600 Pennsylvania Avenue NW Washington, DC 20500;
MICHAEL POMPEO, in his official capacity as Secretary of State 2201 C Street NW Washington, DC 20520;
ALEX AZAR, in his official capacity as Secretary of Health and Human Services 200 Independence Avenue SW Washington, DC 20201;
CHAD WOLF, in his official capacity as Acting Secretary of Homeland Security 3801 Nebraska Avenue NW Washington, DC 20016;
Defendants.

Case No. 8:19-cv-3346
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION 1. This lawsuit challenges the President’s unprecedented attempt to condition the resettlement of refugees on state and local governments providing advance written consent to refugee resettlement in their jurisdictions, which directly conflicts with the statutory scheme enacted by Congress and core principles of federalism. The President’s order and resulting agency actions threaten to deprive thousands of refugees of their best chance to successfully build a new life and to burden thousands of U.S. families who are waiting to reunite with their parents, children, and other relatives fleeing persecution. They threaten to deprive local communities that want to welcome refugees of the opportunity to do so. And they threaten to systematically dismantle the organizations—including Plaintiffs—that have spent decades developing networks, expertise, and resources to carry out the American ideal of welcoming refugees. Accordingly, and in order to stop ongoing irreparable harm and to prevent greater irreparably injury in the future, Plaintiffs seek preliminary injunctive relief on an emergency basis. 2. On September 26, 2019, the President issued an Executive Order entitled “Enhancing State and Local Involvement in Refugee Resettlement” (“Executive Order” or “Order”). Executive Order 13888, 84 Fed. Reg. 52,355 (Sept. 26, 2019). The Order directs that the placement of refugees for resettlement within the United States be preconditioned on written consent from both the state and locality. The Order thus establishes a default whereby refugees will not be resettled unless the state and locality take the affirmative step of providing written consent—never before required—to such resettlement. In doing so, the Executive Order contravenes the Refugee Act, exceeds the scope of the Administration’s statutory authority, and violates constitutional federalism principles.
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3. In implementing the Executive Order, the U.S. Department of State (“State Department”) announced that in order to continue resettling refugees in the next fiscal year, Plaintiffs must submit a proposal by January 21, 2020, that includes written consent from states and localities where refugees could be resettled. The State Department has charged Plaintiffs with soliciting and obtaining such written consent.
4. The State Department further announced that starting on June 1, 2020, states and localities must both provide written consent for refugee resettlement to continue in their jurisdictions.
5. The Order creates but does not resolve any number of practical problems; for example, it does not define “locality” or specify the local government office or entity required to provide written consent where there are overlapping sub-state jurisdictions. Rather than resolve the many practical concerns raised by the Order, the agencies responsible for implementing it have ignored those issues and shifted the burden for resolving them onto the Plaintiffs, by requiring them to obtain the written consents dictated by the Order if they wish to secure an agreement to continue assisting refugees in resettlement.
6. Plaintiffs HIAS, Church World Service, and Lutheran Immigration and Refugee Service are three faith-based national resettlement agencies that hold agreements with the federal government to assist refugees admitted to the United States in their resettlement. Together with community partners and local, affiliated resettlement agencies throughout the country, Plaintiffs stand ready to welcome refugees as they have done for more than half a century. Plaintiffs and the six other national resettlement agencies provide critical support for newly admitted refugee families, including preparing a home with basic necessities before the family’s arrival; organizing donations of clothing, home supplies, and other items based on the family’s unique
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needs; and even traveling to the airport to welcome the family as they arrive in the United States. After a refugee family is initially resettled, these resettlement agencies provide continued support designed to help refugees adjust to life in America.
7. Plaintiffs and their affiliated organizations have been doing this work for decades. Indeed, Plaintiffs have nearly 300 years of combined experience resettling refugees in the United States, as they were doing so well before the Refugee Act of 1980 statutorily codified their longstanding role. Never in all that time has the resettlement of refugees been contingent on the prior written consent of government officials in the jurisdiction where the refugee is to be resettled. Rather, through the enactment of the Refugee Act, Congress has specified that state and local governments are to be consulted in decisions regarding refugee placement. The Refugee Act, moreover, expressly reflects Congress’s considered judgment that refugees be resettled with their families, that they have the resources and opportunities necessary to thrive in their new communities, and that while states and localities should be consulted about resettlement, they should not get to decide where or whether refugees are resettled. Neither the federal statutory scheme nor the Constitution leaves room for a state or local veto over refugee resettlement.
8. As a result of the Executive Order and its implementation, Plaintiffs must either seek to satisfy the prior written consent condition—causing a significant diversion of their resources and risk to their nonprofit tax status with uncertain prospects of success—or lose out entirely on securing an agreement that enables Plaintiffs to carry out their missions. Faced with this decision, Plaintiffs are also mindful that the lives of thousands of refugees and the families with whom they hope to reunite in the United States hang in the balance.
9. The Plaintiffs respectfully request that the Court enjoin the Executive Order and its
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implementation, including Defendants’ conditioning of refugee placement on the prior written consent of state and local governments.
JURISDICTION AND VENUE 10. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 over Plaintiffs’ claims under the U.S. Constitution and federal statutes. The Court has additional remedial authority under 28 U.S.C. §§ 2201-02. 11. Venue is proper under 28 U.S.C. § 1391(e) and Local Rule 501.4.b. Plaintiff HIAS resides in the Southern Division of this District. No real property is involved in this action.
PARTIES 12. Plaintiff HIAS, Inc. is a 501(c)(3) faith-based organization and the world’s oldest refugee resettlement agency. HIAS is the American Jewish community’s global refugee organization and is one of the nine national refugee resettlement agencies that has an agreement with the State Department to assist with the initial placement and resettlement of refugees. HIAS works towards a world in which all refugees find welcome, safety, and freedom. Founded as the Hebrew Emigrant Aid Society in 1881 to assist Jews fleeing pogroms in Russia and Eastern Europe (and later renamed the Hebrew Immigrant Aid Society), HIAS now serves refugees and persecuted people of all faiths and nationalities around the globe. Since HIAS’s founding, the organization has helped more than 4.5 million refugees start new lives. HIAS has offices in 15 countries worldwide, including its headquarters in Silver Spring, Maryland, which is its principal place of business. HIAS provides resettlement services in the United States through 15 affiliates in 11 states. 13. Plaintiff Church World Service, Inc. (“CWS”) is a 501(c)(3) faith-based organization committed to serving the world’s most vulnerable people through just and sustainable responses
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to hunger, poverty, displacement, and disaster. CWS is one of the nine national refugee resettlement agencies that has an agreement with the State Department to assist with the initial placement and resettlement of refugees. Since its founding in 1946 in the aftermath of the Second World War, CWS has provided assistance and resettlement services to those displaced by violence and discrimination. Within the United States, CWS works to build welcoming communities that support refugees on a path toward self-sufficiency, full integration, and securing a bright future for their families. To date, CWS has helped to resettle more than 860,000 refugees, parolees, and other entrants across the United States. CWS has offices in 8 countries worldwide, including its headquarters in New York City and other domestic offices in Elkhart, Indiana and Washington, D.C. CWS provides resettlement services in the United States in 19 locations in 16 states, either directly or through affiliates.
14. Plaintiff Lutheran Immigration and Refugee Service, Inc. (“LIRS”) is a 501(c)(3) faithbased organization dedicated to helping refugees and migrants seek safety and hope in the United States. LIRS is one of the nine national refugee resettlement agencies that has an agreement with the State Department to assist with the initial placement and resettlement of refugees, and one of only two national resettlement agencies that contract with the State Department to assist with the initial placement and resettlement of unaccompanied refugee minors. Since its founding in 1939, LIRS has supported, equipped, and empowered more than half a million refugees resettling in the United States. LIRS is based in Baltimore, Maryland. LIRS provides resettlement services for adult refugees and families through affiliates in 30 locations; and it provides child welfare services under the Unaccompanied Refugee Minor Program through affiliates in 15 locations. In all, LIRS provides services in 23 states and the District of Columbia.
15. Defendant Donald Trump is the President of the United States. He is sued in his official
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capacity. In that capacity, he issued the Executive Order challenged in this action. 16. Defendant Michael Pompeo is the Secretary of State and has responsibility for overseeing
the enforcement and implementation of the Executive Order by all State Department staff. He is sued in his official capacity.
17. Defendant Alex Azar is the Secretary of Health and Human Services and has responsibility for overseeing the enforcement and implementation of the Executive Order by all Department of Health and Human Services (“HHS”) staff. The Office of Refugee Resettlement (“ORR”) sits within HHS as part of the Administration for Children and Families. He is sued in his official capacity.
18. Defendant Chad Wolf is the Acting Secretary of Homeland Security and has responsibility for overseeing the enforcement and implementation of the Executive Order by all Department of Homeland Security staff. He is sued in his official capacity.
FACTUAL ALLEGATIONS Background on the Refugee Act and U.S. Refugee Resettlement The Refugee Act 19. The United States Constitution assigns the federal government the exclusive authority to establish law and policy regarding the admission or exclusion of noncitizens, including the exclusive authority to regulate immigration. This authority “derives from various sources, including the Federal Government’s power ‘[t]o establish [a] uniform Rule of Naturalization,’ its power ‘[t]o regulate Commerce with foreign Nations,’ and its broad authority over foreign affairs.” Toll v. Moreno, 458 U.S. 1, 10 (1982) (citations omitted). 20. Pursuant to this authority, Congress has enacted a comprehensive statutory scheme to regulate immigration—the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq.—
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which empowers various federal agencies to enforce and administer immigration law. 21. Congress amended the INA in 1980 by enacting the Refugee Act, which embodies the
U.S. commitment to humanitarian assistance for those fleeing persecution. Refugee Act of 1980 (“Refugee Act”), Pub. L. No. 96-212, 94 Stat. 102 (1980).
22. In enacting the Refugee Act, Congress sought to “provide a permanent and systematic procedure for the admission … 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.” Id. § 101(b).
23. Through the Refugee Act, Congress declared that “it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands,” including through resettlement of such persons to this country. Id. § 101(a).
24. The Refugee Act sets out detailed policies and procedures that govern the admission and resettlement of refugees in the United States. See 8 U.S.C. § 1157, et seq.
25. Under U.S. law, and with limited exceptions, a “refugee” is a person fleeing his or her country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42).
26. Per the Refugee Act, each year the President determines, after consultation with Congress, the number of refugees whose resettlement in the United States in the upcoming fiscal year is “justified by humanitarian concerns or is otherwise in the national interest.” 8 U.S.C. § 1157(a)(2)-(3).
27. The Refugee Act also established the Office of Refugee Resettlement (“ORR”), which sits within the Department of Health and Human Services. See 8 U.S.C. §§ 1521(a), 1522(b).
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ORR is responsible for funding and administering federal cash and medical assistance programs for refugees beyond the initial resettlement period. 8 U.S.C. §§ 1521(b), 1522(e)(1).
28. The Refugee Act sets out detailed instructions regarding how it should be determined where admitted refugees are to be resettled within the United States.
29. Congress identified specific factors that federal agencies charged with making initial placement decisions must consider in administering the program. These include: (1) the proportion of refugees to the general population in the area; (2) the availability of employment opportunities, affordable housing, and public and private resources; (3) the likelihood of refugees in the area becoming self-sufficient; (4) the likelihood of secondary migration of refugees from the area; and (5) the views of the nonprofit organizations (including Plaintiffs) who provide resettlement services to refugees. See, e.g., 8 U.S.C. §§ 1522(a)(2)(C)(iii)(I)-(IV), 1522(a)(2)(A).
30. The Refugee Act also requires federal agencies1 to consult with relevant stakeholders about the refugee placement process. This includes the Resettlement Agencies and their affiliates as well as state and local governments. 8 U.S.C. §§ 1522(a)(2)(A), (D).
31. For example, the Act provides that the agencies “shall consult regularly (not less 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.” Id. § 1522(a)(2)(A).
1 The Refugee Act permits the President to reassign the statutory authority of the Director of the Office of Refugee Resettlement to administer the Reception and Placement Program to another office. 8 U.S.C. § 1522(b)(1)(B). President Carter determined that the Department of State should exercise that authority; ever since, the Department of State’s Bureau of Populations, Refugees, and Migration has administered the Reception and Placement Program. Accordingly, this Complaint refers to the State Department’s responsibility to make grants or contracts with Resettlement Agencies “consistent with the objectives of [8 U.S.C. § 1522].” Id. § 1522(b)(1)(A).
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32. The Act also provides that “[w]ith respect to the location of placement of refugees within a State”—but only within a State—“the [agencies] shall, consistent with such policies and strategies and to the maximum extent possible, take into account recommendations of the State.” Id. § 1522(a)(2)(D) (emphasis added).
33. The legislative history of these statutory provisions confirms that this consultation requirement was “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.” H.R. Rep. No. 99-132, at 19 (1985).
34. Congress has provided that assistance and services are to be provided to refugees “without regard to race, religion, nationality, sex, or political opinion.” 8 U.S.C. § 1522(a)(5). ORR’s regulations also incorporate this prohibition. See 45 C.F.R. § 400.5(g). Similarly, under their agreements with the State Department, Plaintiffs must carry out their refugee resettlement services in accordance with Title VI of the Civil Rights Act of 1964.
35. The United States has also ratified the 1967 Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, which bound the United States to respect Articles 2 through 34 of the 1951 International Convention Relating to the Status of Refugees. Under the Protocol, the United States must respect a series of international obligations concerning the treatment and resettlement of refugees, including honoring the rights of refugees to choose their place of residence within their host country and to move freely within that country. See Art. 26 of the 1951 Convention Relating to the Rights of Refugees, 19 U.S.T. 6223. The U.S. Refugee Admissions Program
36. The U.S. Refugee Admissions Program is managed by the State Department with the Department of Homeland Security and the Department of Health and Human Services.
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37. The State Department, through its cooperating agencies around the world, is responsible for facilitating the overall refugee application process, while the Department of Homeland Security has responsibility for determining an applicant’s eligibility for refugee status under U.S. law.
38. Once the Department of Homeland Security conditionally approves an applicant for resettlement, the refugee receives a “sponsorship assurance” from one of the nine resettlement agencies (“Resettlement Agencies”), of which Plaintiffs are three.
39. The Resettlement Agencies enter into agreements with the State Department to participate in a congressionally created program that assists refugees after their resettlement. The agreements are called “cooperative agreements.”
40. A refugee must receive a “sponsorship assurance” from a Resettlement Agency before she can travel to the United States. The Resettlement Agency assumes responsibility for placing the refugee with one of its affiliates, and for providing the refugee with initial services during her first 30 to 90 days in the United States.
41. In providing sponsorship assurances, Resettlement Agencies and their affiliates take responsibility for providing refugees with basic necessities and core services during their initial period of resettlement and—in coordination with publicly supported refugee service and assistance programs—assisting refugees in achieving economic self-sufficiency as soon as possible after their arrival in the United States.
42. Resettlement Agencies, directly and through affiliates, develop a close relationship with the refugee or refugee families they resettle, as they provide critical support during this vulnerable and challenging time.
43. For example, local resettlement offices provide many services that a refugee family is
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likely to require immediately upon their arrival, including finding housing and furnishing it, stocking the pantry, and making the family a welcome meal for their first night. When the refugees arrive, staff often greet them at the airport, along with needed translators and caseworkers.
44. After the refugees arrive, staff help with transportation and facilitate conversation while the refugees learn English. Affiliates even provide babysitting services so that the refugees can undertake the necessary steps to transition to life in America, like taking an English placement test or getting social security cards.
45. In the past, it took refugees 18 to 24 months from application for admission as a refugee to resettlement in the United States. In recent years, however, it has taken far longer. Consultation and Placement
46. Part of the sponsorship assurance process involves determining where in the United States a refugee will be resettled. This happens in two basic stages.
47. First, the State Department’s Bureau of Population, Refugees, and Migration (“PRM”) enters yearly into “cooperative agreements” with the nine Resettlement Agencies. Each cooperative agreement specifies both the number of refugees that the federal government and Resettlement Agency expect that the Agency will sponsor in the year ahead and their distribution among the jurisdictions in which the Resettlement Agency and/or its affiliates operate. The result is an overall annual placement plan that generally sets out the number of refugees to be placed in each location around the country.
48. In the second stage, PRM meets regularly—typically weekly—with the nine Resettlement Agencies to review individual refugee applicant case records and match the particular needs of each incoming refugee with the specific resources available in a local
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community. 49. If a refugee has a relative or someone else designated as a “U.S. tie,” then she must be
placed in the location where that family member or friend resides, with limited exceptions. Otherwise, PRM and the relevant Resettlement Agency agree to resettle the refugee in the community whose resources best match the refugee’s needs.
50. These decisions take considerable time and care and require weighing multiple factors. 51. Plaintiff HIAS, for example, has worked with outside researchers to develop software to enable it to improve its process of matching a newly admitted refugee with one of its local affiliates. 52. After a Resettlement Agency agrees to sponsor a refugee for resettlement, it notifies its local office or affiliate that it will receive the refugee for resettlement. 53. Upon receiving a notification of resettlement from a Resettlement Agency, the affiliate works to prepare for the refugee’s arrival. Federal Funding for Refugee Assistance 54. Federal funding for refugee resettlement and assistance falls into two main categories. 55. First, the State Department provides funding through the Reception and Placement Program, which covers up to the first 90 days a refugee is in the United States. 56. The Reception and Placement Program is administered through the cooperative agreements between the State Department and the Resettlement Agencies. 57. Resettlement Agencies use this funding to provide housing, essential furnishings, food, clothing, orientation, and assistance with access to other social, medical, and employment services. Under the cooperative agreements, Resettlement Agencies are reimbursed $2,175 per refugee they sponsor (at least $1,175 of which must be in direct assistance to the refugee, and up
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to $1,000 of which may offset the cost of the affiliate’s services and overhead supporting the refugee). This support is intended as a supplement to private resources the Resettlement Agencies and their affiliates are able to mobilize for the benefit of their refugee clients.
58. Second, ORR provides longer-term assistance to refugees, primarily through state governments. See 8 U.S.C. § 1522. ORR funds, among other things, transitional and medical services, as well as social services to help refugees become socially and economically selfsufficient. See 8 U.S.C. §§ 1521, 1522.
59. Additionally, ORR fully reimburses states for cash and medical assistance that they provide to refugees and their families. See 8 U.S.C. § 1522(e)(1).
60. The majority of refugee resettlement programs funded by ORR are administered by states. In order to receive these federal funds, a state must submit a state plan, which is approved by ORR. The state plan describes how the state will coordinate cash and medical assistance and otherwise meet the requirements imposed by the Refugee Act. See id. § 1522(a)(6); 45 C.F.R. §§ 400.4(a), 400.5(b).
61. If a state chooses to withdraw from the refugee resettlement program, it may do so with proper notice to ORR. See 45 C.F.R. § 400.301(a).
62. The Refugee Act does not condition the resettlement of refugees in a state on that state’s participation in the refugee resettlement program.
63. If a state chooses to withdraw from the program, refugee resettlement continues in that state pursuant to alternative arrangements established by Congress and federal agencies. See, e.g., 8 U.S.C. § 1522(e)(7); 45 C.F.R. § 400.301(c). The Success of the Refugee Program
64. Since the passage of the Refugee Act in 1980, this congressionally established process for
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Case 8:19-cv-03346-PJM Document 1 Filed 11/21/19 Page 15 of 29 refugee placement and resettlement has proved enormously successful, with the United States serving as a world leader in humanitarian efforts to respond to the global refugee crisis. Refugees from all over the world have been resettled in hundreds of locations across the country.
65. The following map reflects the total number of refugees resettled in the United States per state over the last five fiscal years, according to data from PRM.
66. Since the passage of the Refugee Act in 1980, Plaintiffs and other Resettlement Agencies have grown their networks of volunteers, drawing in large part from their various faith communities, who are eager to welcome refugees.
67. Cities across the country have also sought to welcome refugees, recognizing the immense value refugees bring to local communities. Cities with declining populations, for instance, have been revived by the influx of newly admitted refugees. Refugees have invigorated local economies, brought innovation, and made communities stronger through their contributions to public life and cultural institutions.
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President Trump’s Targeting of Refugees and Efforts to Dismantle the Refugee Resettlement Infrastructure
68. In response to the global refugee crisis and the Syrian civil war, the United States began to accept more refugees. The United States raised the annual goal for refugee admissions from 70,000 to 85,000 in fiscal year 2016, and then to 110,000 in fiscal year 2017 in response to the scale of the current global refugee crisis.
69. Some politicians responded to this increase by encouraging and exploiting anti-refugee resentment. Then-Governor of Indiana Mike Pence was one of numerous state officials who attempted to block the resettlement of Syrian refugees in their states based on fearmongering that Syrian refugees represented a “Trojan horse” through which radical Islamic terrorists would enter the United States.
70. These state attempts to prevent refugee resettlement were uniformly blocked by the federal courts. See, e.g., Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902, 903-04 (7th Cir. 2016); Tex. Health and Human Servs. Comm. v. United States, 193 F. Supp. 3d 733, 745 (N.D. Tex. 2016); Alabama v. United States, 198 F. Supp. 3d 1263, 1278 (N.D. Ala. 2016). The Seventh Circuit found then-Governor Pence’s actions to be discriminatory and based on nothing other than “nightmare speculation” of ISIS terrorists posing as refugees. Exodus Refugee Immigration, 838 F.3d at 903.
71. Amid this wave of anti-refugee sentiment, then-candidate Trump campaigned on a promise to exclude Muslim refugees, whom he vilified as “radical Islamic terrorists,” from entering the United States. Within his first week in office, President Trump made good on his promise by signing Executive Order 13769, which, among other things, called for a 120-day suspension of the U.S. refugee admissions program and an indefinite ban on the resettlement of Syrian refugees. See Exec. Order No. 13769, Protecting the Nation From Foreign Terrorist Entry
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Into the United States, 82 Fed. Reg. 8977 (Jan. 27, 2017). Executive Order 13769 also dramatically slashed the annual goal for refugee admissions set by President Obama by more than half. Federal courts immediately blocked certain provisions of Executive Order 13769, but the Trump Administration was undeterred. It continued with an onslaught of policies aimed at driving down refugee admission rates and dismantling the refugee resettlement infrastructure.
72. As a result of these efforts, the United States did not come close to meeting the annual refugee admissions goal for fiscal year 2018, which was already the lowest in the history of the United States’ refugee resettlement program. Of the 45,000 admissions slots created by the Presidential Determination for fiscal year 2018, 82 Fed. Reg. 49,083 (Sept. 29, 2017), less than half that number of refugees were in fact admitted. Processing times for refugees seeking to be reunited with family members through the follow-to-join program also slowed to a near standstill.
73. As the end of fiscal year 2019 approached, the Administration announced it would propose yet another record-low refugee admissions goal of only 18,000. This represents less than one-fifth of the average (95,000) of all annual refugee admission goals set by previous presidents since the enactment of the Refugee Act in 1980.
74. Although the statute requires the President to set the annual refugee admissions goal before the beginning of the new fiscal year (that is, before October 1), see 8 U.S.C. § 1157(a)(2), President Trump delayed signing the Presidential Determination setting the Fiscal Year 2020 admissions goal for more than four weeks.
75. During that four-week delay, refugee admissions were yet again suspended. As a result, hundreds of refugees, many of whom have been waiting years to be resettled to safety in the United States, had their travel canceled during this period.
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76. All of these actions—the suspensions of refugee admissions, the slashing of the annual refugee admissions goal, the failure to meet even slashed goals, and the delay in making the statutorily required determination—have not just harmed refugees waiting to come to the United States. They have also devastated refugees already here and the organizations that seek to help them.
77. The sharp drop in refugee admissions has forced Resettlement Agencies and their affiliates to make significant budget cuts. That, in turn, has reduced their ability to help refugees already resettled in the United States who continue to rely on Resettlement Agencies for support, including after their initial government-funded benefits run out. It has also meant the loss of community support critical to the United States’ ability to resettle refugees in the future.
The Refugee Veto Executive Order 78. On September 26, 2019, President Trump signed Executive Order 13888, entitled “Enhancing State and Local Involvement in Refugee Resettlement” (“Executive Order” or “Order”). See 84 Fed. Reg. 52,355 (Sept. 26, 2019). 79. The Order is similar to a provision included within President Trump’s first two Muslim ban executive orders, both of which directed the Secretary of State to give states and localities the maximum possible role in determining the placement or resettlement of refugees in their jurisdictions. 80. Despite being in effect since the first week of President Trump’s time in office, this directive did not materially change the limited, statutorily defined role states and localities have long played in making such determinations. 81. Thus, the Order challenged here is far more prescriptive: it requires the Secretary of State and the Secretary of HHS to “[w]ithin 90 days . . . develop and implement a process to determine
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whether the State and locality both consent, in writing, to the resettlement of refugees within the State and locality, before refugees are resettled within that State and locality . . . .” Exec. Order § 2(a). The Order also requires the Secretary of State to “publicly release any written consents of States and localities to resettlement of refugees.” Id.
82. The Order does not define “locality,” nor does it identify who within the State or “locality” is authorized to provide the written consent it requires.
83. It further directs the Secretaries of State and HHS to develop and implement a process by which “if 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.” Exec. Order § 2(b).
84. The Order exempts refugees seeking to reunite with certain family members in the United States pursuant to 8 U.S.C. § 1157(c)(2)(A) from the operation of section 2(b). See Exec. Order § 2(c).
85. Under 8 U.S.C. § 1157(c)(2)(A), spouses and unmarried children under age twenty-one of already resettled refugees are entitled to admission to the United States in the same status as their spouse or parent so long as they are not inadmissible. See 8 U.S.C. § 1157(c)(2)(A). Refugees seeking admission under this statute are sometimes referred to as “follow-to-join refugees.”
86. The Order does not exempt follow-to-join refugees from the operation of section 2(a). 87. Refugees resettled to the United States outside of the follow-to-join process are also
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frequently reuniting with family members already here; yet family reunification outside of the follow-to-join process is not exempted from any of the Order’s provisions.
Defendants’ Implementation of the Executive Order 88. Defendants have already begun implementing the Executive Order. 89. Pursuant to that implementation, Defendants have decided that, as of June 1, 2020, refugees may not be resettled in a particular location unless the governments of both the “locality” and the encompassing state have affirmatively provided written consent for refugees to be resettled there. 90. Instead of soliciting those consents themselves, Defendants have decided to require the Resettlement Agencies, including Plaintiffs, to do so. 91. These decisions are reflected in the Notice of Funding Opportunity (“Funding Notice”) PRM issued on November 6, 2019 for its Reception and Placement Program for Fiscal Year 2020, which will run from June 1, 2020 to September 30, 2020. 92. To be considered for the Reception and Placement Program for the 2020 fiscal year, a Resettlement Agency must submit an application according to the instructions in the Funding Notice by January 21, 2020 at 12:00 p.m. EST. 93. As stated in the Funding Notice, PRM is requiring applicants to “seek written consent for resettlement of refugees for FY 2020 from the state governor’s office and the chief executive officer of the local government (county or county equivalent).” 94. The requirement to seek written consent applies not only to those applicants proposing to manage resettlement for adult refugees and refugee children traveling with their families, but also to those applicants proposing to assist with placing unaccompanied refugee minors into foster care.
19

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95. The requirement to seek consent does not depend on whether the refugee to be resettled is

a follow-to-join refugee.

96. The Funding Notice requires that applicants provide in their proposal a “list of state and

local government consents.”

97. For each listed state, the Resettlement Agency must also include supporting

documentation in the form of “a letter of consent from the state governor’s office” or, if consent

is “unavailable,” a “note [of] the date [the applicant] sought the consent and that it is

unavailable.”

98. For each listed locality, the Resettlement Agency must also include supporting

documentation in the form of “a letter of consent from the chief executive officer of the local

government (county or county equivalent)” or, if consent is “unavailable,” a “note [of] the date

the [applicant] sought the consent and that it is unavailable.”

99. The Funding Notice instructs that “PRM will not permit placement in states or localities

that lack such documentation.”

100.

PRM will treat consents as a prerequisite to resettlement.

101.

This is evident, for example, from the Funding Notice’s instructions regarding

placement of refugees outside of PRM’s prescribed ordinary resettlement radius of 50- or 100-

miles within the state of a particular local office. Applicants proposing to manage placement of

refugees outside that placement radius must propose a model that “include[s] an approach that

ensures refugees are placed only in states and localities that have consented to receive refugees.”

102.

The Funding Notice also advises applicants that “state and local consents are not

required for refugee resettlement before the award period.” (emphasis added).

103.

Moreover, although section 2(b) of the Executive Order suggests the possibility

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that the lack of consent from a particular state or local government might not preclude refugee

resettlement there, the implementation of the Order, as evidenced by the Funding Notice, does

not provide for such a possibility.

The Executive Order and Its Implementation Irreparably Harm Plaintiffs

104.

Plaintiffs are three of the nine national Resettlement Agencies with current

cooperative agreements with the State Department to resettle refugees through the Reception and

Placement Program.

105.

Refugee resettlement lies at the heart of the Plaintiffs’ work in the United States.

The Plaintiffs share a mission to stand with and advocate on behalf of refugees and other

persecuted people and engage their respective faith communities in welcoming refugees and

newcomers. Plaintiffs’ missions and work are the product of sincerely held religious beliefs.

106.

Plaintiffs collectively have resettled millions of refugees.

107.

Plaintiffs’ current cooperative agreements end on May 31, 2020. Starting on June

1, 2020, Plaintiffs must have a new cooperative agreement in order to continue assisting newly

admitted refugees with their resettlement in the United States.

108.

Per the Funding Notice’s requirements, Plaintiffs must submit their proposals for

refugee resettlement by January 21, 2020 in order to be considered for a new cooperative

agreement.

109.

For clients assigned to them through the State Department’s process, Plaintiffs

provide direct resettlement services or partner with other organizations across the country to do

so.

110.

HIAS currently provides refugee resettlement support through its various affiliate

offices in 11 states: California, Delaware, Florida, Massachusetts, Michigan, New York, North

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Carolina, Ohio, Pennsylvania, Washington, and Wisconsin.

111.

Either directly or through its affiliates, CWS currently maintains resettlement

offices in 19 locations in 16 states: California, Florida, Georgia, Illinois, Indiana, Kentucky,

Michigan, Nebraska, New Hampshire, New York, North Carolina, Ohio, Oregon, Pennsylvania,

Texas, and Virginia.

112.

LIRS provides resettlement services for adult refugees and families through

affiliates in 30 locations. LIRS also resettles unaccompanied refugee children through affiliates

in 15 locations. In all, LIRS provides services in the District of Columbia and 23 states:

Arkansas, Arizona, California, Colorado, Florida, Georgia, Maryland, Massachusetts, Michigan,

Minnesota, Nebraska, New Mexico, New York, North Carolina, North Dakota, Oregon,

Pennsylvania, South Carolina, South Dakota, Texas, Virginia, Washington, and Wisconsin.

113.

Some of LIRS’s affiliates resettle both unaccompanied refugee children and other

refugees, but most of its affiliates only resettle one or the other group.

114.

Plaintiffs’ success as Resettlement Agencies depends on their broad network of

affiliates and offices around the country. In order to carry out their work effectively, Plaintiffs

and their affiliates invest considerably in a network of individuals and entities whose cooperation

is both useful and necessary to successfully resettle refugees, including landlords, medical

providers, employers, government agencies, congregations, civic organizations, and foster care

providers.

115.

Plaintiffs also rely heavily on the work of their volunteers, often drawing upon

their faith communities that believe—as Plaintiffs do—that refugee resettlement is a fulfillment

of the religious calling to welcome the stranger. In turn, Plaintiffs serve as a conduit, providing

these faith communities with an opportunity to express this sense of calling.

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116.

As a result of the Executive Order and its implementation, Plaintiffs must seek the

written consent of all relevant state and local governments in every location where they propose

to resettle refugees in the current fiscal year.

117.

Plaintiffs must document these consents before January 21, 2020, when their

proposal in response to the Funding Notice is due.

118.

If Plaintiffs do not document the relevant consents by this deadline, they will be

unable to continue resettling refugees in those locations.

119.

If Plaintiffs or their affiliates are not permitted to continue resettling refugees,

they may be unable to sustain their operations and be forced to close local resettlement offices.

This would frustrate Plaintiffs’ missions and harm their overall operations.

120.

The relationships and goodwill that Plaintiffs and their affiliates have cultivated

over the course of several decades is difficult to rebuild once lost and cannot be transferred to

new localities and states.

121.

Moreover, if Plaintiffs are forced to close certain of their affiliates, their ability to

continue to provide services under the Reception and Placement Program itself may be

threatened. This is so because in awarding cooperative agreements, the State Department

considers a Resettlement Agency’s geographic reach and whether it has demonstrated low rates

of “secondary migration,” a term referring to the phenomenon in which a refugee quickly

decides to move away from his or her initial placement.

122.

More generally, secondary migration creates inefficiencies and burdens because

the initial Resettlement Agency affiliate must coordinate with the receiving Resettlement Agency

affiliate to transfer services for the refugee who has moved. Moreover, the initial affiliate loses

its investment in the refugee’s initial resettlement, and the refugee must expend time and

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resources to relocate.

123.

In order to try to avoid these harms, Plaintiffs must engage in considerable

lobbying activities to solicit written consents from state and local governments, as required by

the Executive Order. Plaintiffs and their affiliates expect to spend thousands of hours lobbying

scores of state and local governments if the Executive Order remains in effect.

124.

Lobbying on this scale will result in the diversion of Plaintiffs’ resources, which

will threaten their ability to engage in work in furtherance of their missions.

125.

The burdens imposed by being required to document written consents are

especially severe because of uncertainty around the precise locations where refugees may have

U.S. ties or otherwise wish to resettle. Moreover, because refugees ordinarily may be placed

anywhere within a 50- or 100-mile in-state radius of an affiliate office, Plaintiffs’ affiliates

generally must solicit consents from well beyond the counties in which they reside.

126.

For Plaintiff LIRS, this issue is compounded by the fact that in addition to the

services that it provides to refugees through the Reception and Placement Program, it is one of

only two national Resettlement Agencies that participates in the Unaccompanied Refugee Minor

(“URM”) program. Under this program, LIRS works with the State Department and HHS to

provide child welfare services to refugee children who are resettled in the United States without

a parent or custodian.

127.

This work includes identifying, screening and educating potential foster families,

and placing refugee children with those families. An appropriate foster family can be located

anywhere within a participating state, which means that maintaining the ability to operate the

URM program will require LIRS to obtain the written consent of every “county or county

equivalent” in every state where the program operates.

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128.

Plaintiffs are concerned that time spent lobbying state and local officials for

consent could expose it or its affiliates—all of whom are non-profit organizations—to liability

under state or federal laws regulating lobbying, particularly by non-profits.

129.

The process for obtaining consents has been made more difficult as a result of

Defendants’ failure to provide sufficient guidance clarifying what the Executive Order requires.

For example, the Funding Notice fails to explain its use of “county equivalent” so as to enable

Plaintiffs and their affiliates to solicit consent from such an entity. As a result, Plaintiffs have

been forced to divert significant resources to address questions from their affiliates about the

Order.

130.

The Executive Order and its implementation burden and threaten Plaintiffs’

ability to fulfill their missions in accordance with their religious values.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF (Violation of the Refugee Act)

131.

The foregoing allegations are repeated and incorporated as though fully set forth

herein.

132.

The Refugee Act sets out the conditions and considerations for the domestic

resettlement of refugees, including the placement of refugees among and within the states. See 8

U.S.C. § 1522(a).

133.

The Refugee Act also specifies that the President must “determine[]” the total

number of refugees to be admitted within a given fiscal year, after consultation with Congress.

See 8 U.S.C. § 1157(a)(2) & (e).

134.

Within this congressionally created scheme, the state and local governments’ role

in decisions regarding placement of admitted refugees is well-defined—they are to be consulted.

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See 8 U.S.C. § 1522(a)(2)(A)-(D).

135.

Under the Refugee Act, refugee placement and/or resettlement may not be

conditioned on either the state or the local government’s approval, much less both.

136.

The Executive Order and the Defendants’ implementation of it violate the

Refugee Act.

SECOND CLAIM FOR RELIEF (Violation of the Administrative Procedure Act)

137.

The foregoing allegations are repeated and incorporated as though fully set forth

herein.

138.

Defendants’ actions taken to implement the Executive Order, including but not

limited to Defendants’ conditioning of refugee placement and resettlement on prior state and

local written consent, are arbitrary, capricious, an abuse of discretion or otherwise not in

accordance with law; contrary to constitutional right, power, privilege, or immunity; and in

excess of statutory jurisdiction, authority, or limitations, or short of statutory right.

139.

Defendants’ actions taken to implement the Executive Order were arbitrary and

capricious because they failed to follow their own policies, procedures, and regulations.

140.

Defendants’ actions taken to implement the Executive Order, including

Defendants’ conditioning of refugee placement on prior state and local written consent,

constitute a legislative rule issued without observance of the notice and comment procedure

required by 5 U.S.C. § 553.

141.

Defendants’ implementation of the Executive Order must therefore be set aside

pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)-(D).

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THIRD CLAIM FOR RELIEF (Violation of the U.S. Constitution – Federalism)

142.

The foregoing allegations are repeated and incorporated as though fully set forth

herein.

143.

Under the U.S. Constitution, the federal government has the exclusive authority to

determine law and policy regarding noncitizens and immigration, including the exclusive

authority to determine the admission and exclusion of refugees.

144.

The Executive Order and Defendants’ implementation of it seek to delegate to

state and local governments authority that the Constitution vested exclusively with the federal

government.

145.

The Executive Order and Defendants’ implementation of it are therefore

preempted by the principle of federalism on which the Constitution is structured.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for the following relief:

A. A preliminary and permanent injunction enjoining Defendants, their officials, agents,

employees, assigns, and all persons acting in concert or participating with them from

implementing or enforcing any portion of the Executive Order;

B. A declaration that the Executive Order is unlawful and invalid;

C. A declaration that conditioning refugee placement on the written consent from state and

local governments is unlawful and invalid;

D. An order awarding Plaintiffs costs of suit and reasonable attorneys’ fees and expenses

pursuant to any applicable law;

E. Such other and further relief as the Court deems equitable, just, and proper.

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Dated: November 21, 2019
Melissa S. Keaney* International Refugee Assistance Project PO Box 2291 Fair Oaks, CA mkeaney@refugeerights.org (916) 546-6125

Respectfully submitted,
/s/ Justin B. Cox Justin B. Cox (Bar No. 17550) International Refugee Assistance Project PO Box 170208 Atlanta, GA 30317 jcox@refugeerights.org (516) 701-4233
Linda Evarts* Kathryn Austin* Mariko Hirose* International Refugee Assistance Project One Battery Park Plaza 4th Floor New York, NY 10004 levarts@refugeerights.org kaustin@refugeerights.org mhirose@refugeerights.org (516) 701-4620
* Motion for Pro Hac Vice forthcoming

28

 
 HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)

2020 WL 218646 Only the Westlaw citation is currently available.
United States District Court, D. Maryland.
HIAS, INC., et al., Plaintiffs, v.
Donald TRUMP, in his official capacity as President of the United States, et al., Defendants.
Civil No. PJM 19-3346 |
Signed January 15, 2020
Synopsis Background: Resettlement agencies brought action against President, Secretary of State, Secretary of Health and Human Services, and Secretary of Homeland Security challenging legality of executive order that allegedly gave state and local governments power to veto, by refusing to consent to, resettlement of refugees in their respective jurisdictions. Agencies moved for preliminary injunction.
Holdings: The District Court, Peter J. Messitte, Senior District Judge, held that:
agencies had standing to challenge order’s legality;
agencies were likely to succeed on merits of their claim;
executive order and notice of funding opportunity constituted final agency actions;
agencies would suffer irreparable harm upon implementation of executive order and notice of funding opportunity; and
balance of equities and public interest favored issuance of preliminary injunction.
Motion granted.
Procedural Posture(s): Motion for Preliminary Injunction.
Attorneys and Law Firms
1

Justin B. Cox, International Refugee Assistance Project, Atlanta, GA, Kathryn Shu-yeng Austin, Pro Hac Vice, Linda B. Evarts, Pro Hac Vice, Mariko Hirose, Pro Hac Vice, International Refugee Assistant Project, New York, NY, Melissa S. Keaney, Pro Hac Vice, International Refugee Assistance Project, Fair Oaks, CA, for Plaintiffs.
Bradley Philip Humphreys, United States Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION
PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE
I. Introduction *1 HIAS, Inc., Church World Service, Inc., and Lutheran Immigration and Refugee Service, Inc. have sued President Donald Trump and three of his cabinet secretaries, seeking preliminary and permanent injunctive relief. They challenge Executive Order 13888, 84 Fed. Reg. 52,355 (Sept. 26, 2019) (Order), that they allege would give individual U.S. States and Local Governments the power to veto, by refusing to consent to, the resettlement in their respective jurisdictions of certain refugees from around the world. Plaintiffs are three of nine designated “Resettlement Agencies” that enter into annual agreements with the Federal Government to provide services to these refugees under the current refugee resettlement program of this country, as described more fully infra. Defendants, in their official capacities, are the President, Secretary of State Michael Pompeo, Secretary of Health and Human Services Alex Azar II, and Acting Secretary of Homeland Security Chad Wolf, all of whom have developed and/or are responsible for implementing the Order.
The case is at the Preliminary Injunction phase.1
Defendants, represented by the U.S. Department of Justice, have filed an Opposition to the Motion for Preliminary Injunction to which Plaintiffs have replied. Numerous entities, with leave of Court, have filed briefs as amici curiae.2 Oral argument by counsel for the parties has been held.

HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)
For the reasons that follow, the Court GRANTS the Motion for Preliminary Injunction, ECF No. 18, and reinstates the status quo immediately preceding the issuance of the proclamation of the Order on September 26, 2019, pending further order of the Court.

II. Who is a Refugee? *2 It is of critical importance to understand who a “refugee” is in the context of this case. For present purposes, a “refugee” has been defined under U.S. law, in pertinent part, as: “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or 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).3 See also 8 U.S.C. § 1522. This definition traces back to the definition of “refugee” found in the Statute of the Office of the United Nations High Commission for Refugees (UNHCR) [1950] and the definition in the 1951 Convention Relating to the Status of Refugees.4
“The 1967 Refugee Protocol incorporated the 1951 Convention’s well-founded fear definition in its first article... [such that] [t]he United States owes certain obligations to refugees under international law by virtue of its ratification of the 1967 Protocol, and the [UNHCR], speaking for the international community, is the chief guarantor of these obligations”.5 In 1980, in order to bring U.S. law into conformity with the Protocol, Congress enacted the Refugee Act of 1980.6 In its declaration of policies and objectives prefacing the Act, Congress:

(a) ... declares that it is the historic

policy of the United States to

respond to the urgent needs of

persons subject to persecution in

their homelands, including, where

appropriate,

humanitarian

assistance for their care and

maintenance in asylum areas,

efforts to promote opportunities for

resettlement or voluntary

repatriation, aid for necessary

2

transportation and processing, admission to this country of refugees of special humanitarian concern to the United States, and transitional assistance to refugees in the United States. The Congress further declares that it is the policy of the United States to encourage all nations to provide assistance and resettlement opportunities to refugees to the fullest extent possible. (b) The objectives of this Act are to provide 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.
*3 Refugee Act of 1980, Pub. L. No. 96-212 § 101, 94 Stat. 102.
“Refugees”, then, in terms of the present case, comprise a special category of persons.7
These refugees do not apply for resettlement directly to the Country they hope to go to.8
In most cases, the UNHCR begins by identifying vulnerable individuals (often in conjunction with a U.S. embassy). A number of countries, including the United States, as signatories to the 1967 Protocol, have agreed to cooperate in determining which refugees designated by the UNHCR will be admitted for resettlement. Canada now accepts a greater number of refugees for resettlement under the Convention and Protocol than does the U.S., which historically has accepted the most. See U.N. High Commissioner on Refugees, Global Trends: Forced Displacement in 2018 (2019) at 32.
As of December 31, 2019, the Department of State reports that 30,000 refugees were resettled in the United States in Fiscal Year 2019. See Dep’t of State, Bureau of Population, Refugees, and Migration, Refugee Processing Center, PRM Admissions Graph Dec. 31, 2019 (available at https://www.wrapsnet.org/admissions-and-arrivals/) (last visited Jan. 13, 2020).9 The main countries of origin

HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)
of refugees who settled in the U.S. in FY 2018 were the Democratic Republic of Congo, Myanmar, and Ukraine. Dep’t of State, Dep’t of Homeland Security & Dep’t of Health and Hum. Servs., Report to Congress: Proposed Refugee Admissions for Fiscal Year 2020 (2019) at 25. The top U.S. States accepting refugee resettlement in FY 2018 were Texas, Washington, Ohio, California, New York, and Arizona. Id. at 27.

III. A Brief Summary of Resettlement History Anastasia Brown and Todd Scribner in the Journal of Migration and Human Security briefly summarize the history of the refugee settlement system in the United States:

World War II caused the

displacement of millions of people

throughout Europe. In response, the

United States initiated a

public-private partnership that

assisted in the resettlement of

hundreds of thousands of the

region’s displaced persons. For

nearly 40 years after the War, the

US commitment to refugee

resettlement played out in an ad

hoc fashion as it responded to

emerging crises in different ways.

During this period the

government’s involvement with

resettlement became gradually

intertwined with that of

nongovernmental resettlement

agencies, which came to play an

increasingly vital role in the

resettlement process. The budding

relationship that began in the

middle decades of the twentieth

century set the foundation for an

expansive

and

dynamic

public-private partnership that

continues to this day. The Refugee

Act of 1980 solidified the

relationship between resettlement

agencies and the federal

government, established political

asylum in US law, and created the

refugee resettlement program and a

3

series of assistance programs to help refugees transition to life in the United States. This legislation marked a decisive turning point in the field of refugee resettlement.
*4 Anastasia Brown and Todd Scribner, Unfulfilled Promises, Future Possibilities: The Refugee Resettlement System in the United States, 2 J. Migration and Hum. Security, No. 2, 101, 101 (2014).
IV. The Resettlement Process in the U.S. After the UNHCR identifies and recommends a potential refugee for resettlement in the U.S., the U.S. undertakes its own vetting process (including, for example, administering medical tests and checking global fingerprint databases). The President, after consultation with Congress, determines the numerical ceiling for refugees each year (known as the “Presidential Determination”). See 8 U.S.C. § 1157(a)(2). For Fiscal Year 2020, for example, President Trump has set the ceiling at 18,000, see Presidential Determination on Refugee Admissions for Fiscal Year 2020, 84 Fed. Reg. 65,903 (Nov. 1, 2019), as compared to a ceiling of 110,000 set by President Obama in 2016, see Presidential Determination on Refugee Admissions for Fiscal Year 2017, 81 Fed. Reg. 70,315 (Sept. 28, 2016). Eligible refugees are then interviewed by officers of the U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS), and if deemed admissible, are resettled through what is known as the Refugee Admissions Program (RAP), which is jointly administered by a division within the Department of State (DOS) and the Department of Health and Human Services (HHS). See U.S. Citizenship and Immigration Services, Refugee Screening Fact Sheet (2018) (available at https://www.uscis.gov/sites/default/files/USCIS/Refugee %2C% 20Asylum%2C% 20and% 20Int%271% 20Ops/Refugee_Screening_and_Vetting_Fact_Sheet.pdf). See also Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902, 903 (7th Cir. 2016) (Posner, J.) (“all persons seeking to enter the United States as refugees are required to undergo multiple layers of screening by the federal government, following screening by the United Nations High Commissioner for Refugees, before they can be admitted to the United States. The process can take up to two years”).

HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)
Once DHS conditionally approves an applicant for resettlement, the prospective refugee receives “sponsorship assurance” from one of the nine Resettlement Agencies that has entered into a cooperative agreement with the State Department to assist in the resettlement of refugees.
The “sponsorship assurance” must be received before the prospective refugee may travel to the U.S. See ECF No. 1 ¶ 40. The Resettlement Agency then assumes responsibility for placing the prospective refugee with one of its affiliates, and commences to provide services to the candidate, which are intended to help him or her obtain self-sufficiency. See id. ¶ 41. In the past, it has taken between 18 to 24 months from the time of the individual’s application for admission to actual resettlement, although more recently it has reportedly taken longer. See id. ¶ 45.
Through its Reception and Placement Program the State Department provides funding up to a certain amount to the Resettlement Agencies for each refugee they resettle (e.g. to pay for housing, furnishings, food, clothing and the like). See 8 U.S.C. § 1522(b)(1). This is intended to cover the first 90 days a refugee is in the U.S. Thereafter, the Office of Refugee Resettlement (ORR), which is within HHS, reimburses the States for paying for longer-term assistance, including social services, as well as medical assistance, and even cash. See ECF No. 1 ¶ ¶ 58-59; 8 U.S.C. § 1521.
*5 Heretofore, pursuant to 8 U.S.C. § 1522(a) (Appendix I hereto), the Federal resettlement authorities and the Resettlement Agencies have been directed to meet and consult with State and Local Governments in order to establish policies and strategies for the placement and resettlement of the refugees, in the course of which, acting in concert, they are directed to take into account several factors, including the availability of employment opportunities, affordable housing, and public and private resources in the destination (e.g. educational, healthcare, and mental health resources).10
If the refugee is deemed acceptable for resettlement, the State Department assigns his or her case to one of nine Resettlement Agencies (Plaintiffs being three of the nine), which help the refugee integrate into his or her new U.S. community.
V. The Challenged Executive Order
4

On September 26, 2019, President Trump issued Executive Order 13888 proposing to modify what from at least the mid-1980s to date has been the heart of resettlement practice. Instead of merely giving States and Local Governments an active voice over whether refugees will be resettled in their jurisdictions, the Order provides that the Federal Government “should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State’s Reception and Placement Program”. Order § 1. In other words, the Order gives individual States and Local Governments veto power over resettlement.11
*6 Of immediate concern, as announced by Defendants on November 6, 2019, Resettlement Agencies, including Plaintiffs, that seek to continue providing initial resettlement services beyond June 1, 2020 must obtain prior written consent from any State and Local Government jurisdiction in which they propose to resettle refugees. See U.S. Dep’t of State, Bureau of Population, Refugees, and Migration, 2020 Notice of Funding Opportunity for Reception and Placement Program (Nov. 6, 2019) (Funding Notice). Of even more pressing concern, the State Department has announced that – by January 21, 2020 (the date proposals are due) – the Resettlement Agencies must submit proposals demonstrating to the Federal resettlement authorities that they have solicited and obtained the written consents from the State and Local Governments where the refugees will be placed after June 1, 2020. Id. at 8, 37, 42.12
The Resettlement Agencies understand that any federal funding they receive for services rendered after June 1, 2020 (the award period) will be limited by the number of State and Local Governments that, by January 21, 2020, have given (or have been solicited to give) their written consent to receive refugees. However, beginning June 1, 2020 refugees may only be resettled where State and Local Governments have in fact given such consents.
VI. Judicial Review of Executive Orders Executive Orders are of course subject to judicial review. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); Panama Ref. Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); see generally David M. Driesen, Judicial Review of Executive Orders’ Rationality, 98 Bos. U. L. Rev. 1013 (2018). The question is, What standard should the courts apply in reviewing the Orders? Although the

HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)
Supreme Court has held that the President is not subject to the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and by implication that the “arbitrary and capricious” and “abuse of discretion” standards of the APA do not apply to him, see Franklin v. Massachusetts, 505 U.S. 788, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992), subordinate officers (three of whom are Defendants here) are subject to the Act, see id. at 828, 112 S.Ct. 2767 (Scalia, J., concurring) (“Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive”). In evaluating the President’s Orders the Supreme Court has applied a rationality standard – deferential to be sure. See, e.g., Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 2411, 2420, 201 L.Ed.2d 775 (2018) (“We may assume that § 1182(f) does not allow the President to expressly override particular provisions of the [Immigration and Naturalization Act]. But plaintiffs have not identified any conflict between the statute and the Proclamation that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system”). Constitutional challenges are simply evaluated as such. The actions either are or they are not unconstitutional.
Justice Jackson’s “three part scheme” for evaluating Presidential Powers, as set forth in his concurring opinion in the Youngstown case, endorsed by Justice Kennedy and three other Justices in a concurring opinion in Hamdan v. Rumsfeld, 548 U.S. 557, 638, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), provides useful context when assessing whether executive action is authorized:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.
* * *
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. *7
* * *
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only
5

upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
Youngstown, supra, 343 U.S. at 635-638, 72 S.Ct. 863 (Jackson, J., concurring). Cf. Panama Ref. Co., supra, 293 U.S. 388, 431, 55 S.Ct. 241 (“If it could be said that from the four corners of the statute any possible inference could be drawn of particular circumstances or conditions which were to govern the exercise of the authority conferred, the President could not act validly without having regard to those circumstances and conditions”).13
VII. Core Arguments of the Parties Plaintiffs submit that, in giving State and Local Governments veto power over refugee resettlement, the Order contravenes statutory text and purpose, express Congressional intent, executive practice, multiple judicial holdings and clear Constitutional doctrine. They also say that, if implemented, the Order will cause Plaintiffs and their refugee “clients” irreparable harm and that the balance of equities and public interest militate strongly in favor of issuing a preliminary injunction.
The consequence of the Order, say Plaintiffs, will be the evisceration of a long-standing, smooth-functioning humane program, with disastrous consequences not only for Plaintiffs and eligible refugees but for the image of the United States as the beacon of liberty.
Defendants submit that neither the Order nor the Funding Notice is reviewable because the Refugee Act of 1980 does not provide a private cause of action. But, they say, even if review were available, the Order and Funding Notice are lawful, raise no constitutional concerns and are not otherwise arbitrary and capricious. They also appear to suggest that, because the President has authority to determine how many refugees may be resettled each year – a power not really in dispute, see 8 U.S.C. § 1157(a)(2) – as a subset he has the power to decree that States and Local Governments should have the authority to determine, without respect to any consultative process established by statute, whether, if at all, refugees may inhabit their communities. Particularly, say Defendants, State and local authorities know best what resources they

HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)
have available to accommodate the refugees in their jurisdictions, see Order § 1, and therefore they should have the final say on whether or not they can come. Defendants see no harm to Plaintiffs in the absence of a preliminary injunction and argue that the balance of equities and public interest tilt in their favor.
*8 Plaintiffs reply that not only is the proposed modification illegal; it is little more than a politically motivated decision that will engender hate and divisiveness throughout the country.14
VIII. Factors for Issuance of Preliminary Injunction For Plaintiffs to obtain a preliminary injunction, they must make a clear showing (1) that they are likely to succeed on the merits; (2) that they will suffer irreparable harm that is neither remote nor speculative but actual and imminent if the injunction is not granted; (3) that the balance of equities favor their position, i.e. that the harm Plaintiffs will suffer if the injunction is not granted outweighs the detriment Defendants will suffer if it is and; (4) that the relief they seek is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); see also The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346 (4th Cir. 2009), vacated and remanded on other grounds, 559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010).
IX. Is a Preliminary Injunction Warranted in the Present Case?
A. Likelihood of Success on the Merits The Court begins with the text of the statute. See Trump v. Hawaii, 138 S. Ct. at 2408.
Section 8 U.S.C. § 1522, which sets forth the “conditions and considerations” for authorizing for programs for the initial resettlement of and assistance to refugees, provides that
“The Director and the Federal agency administering [the program of initial resettlement] shall 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”. 8 U.S.C. § 1522(a)(2)(A) (emphasis
6

supplied).
and that
“The Director shall 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.” Id. at (a)(2)(B) (emphasis supplied).
including such factors as that
“a refugee is not initially placed or resettled in an area highly impacted (as determined... after consultation with such agencies and governments)...” Id. at (a)(2)(C)(i) (emphasis supplied).
and that there be
“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...” Id. at (a)(2)(C)(ii) (emphasis supplied).
which takes into account
(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
*9 (IV) the secondary migration of refugees to and from the area that is likely to occur.” Id. at (a)(2)(C)(iii).
and that
“With respect to the location of placement of refugees within a State, the Federal agency administering [the program] shall, consistent with such policies and strategies and to the maximum extent possible, take into account recommendations of the State.” Id. at (a)(2)(D) (emphasis supplied).
This is the language of a Congressional statute. It speaks

HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)
in terms of “consulting” and “consultation” between and among the Resettlement Agencies and the State and Local Governments; establishes that the Resettlement Agencies and State and Local Governments must regularly “meet” to “plan and coordinate”; even acknowledges that “maximum consideration” be given to “recommendations” States make to the Federal Government. The challenged Order definitely appears to undermine this arrangement. As to States or Local Governments that refuse to give written consents, there will be no consultation, no meetings with the Resettlement Agencies, not just “recommendations”.15 Those State and Local Governments can simply give or withhold their written consents to the resettlement of refugees within their borders. If they do not consent – apparently for any reason or for no reason – there will be no resettlement in that entire State or in that local community. Resettlement Agencies will be totally sidelined. In other words, as the screens in e-sports inevitably register: “Game Over”.
By its terms, the current statute, 8 U.S.C. § 1522(a), hardly seems to “exude[...] deference to the President in every clause”. Compare Trump v. Hawaii, 138 S. Ct. at 2408. It delegates no authority and establishes no “facially broad grant of power” to the President at all – certainly nothing that would permit him to disregard, much less put asunder, what is obviously carefully a crafted statutory scheme. Id. at 2410.
Moreover, the Order appears to run counter to the Refugee Act’s stated purpose, which is “... to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted”. Refugee Act of 1980, Pub. L. No. 96-212 § 101 (b), 94 Stat. 102 (emphasis supplied); see also Alabama v. United States, 198 F. Supp. 3d 1263, 1268 (N.D. Ala. 2016); Texas Health and Human Servs, Comm’n v. United States, 193 F. Supp. 3d 733, 739 (N.D. Tex. 2016). The state-by-state, locality-by-locality approach under the Order stands in sharp contrast to the Act’s aim of uniformity. Id.
Lest there be any doubt, giving States and Local Governments the power to consent to the resettlement of refugees – which is to say veto power to determine whether refugees will be received in their midst – flies in the face of clear Congressional intent, as expressed in the legislative history of the statute. Compare Trump v. Hawaii, 138 S. Ct. at 2412.
*10 Thus, in the run-up to the Refugee Assistance
7

Extension Act of 1986 amending the Refugee Act of 1980, which came about very much at the vigorous urging of some States and Local Governments to strengthen their right to be heard, the House Committee on the Judiciary report sets forth at the outset that while:
[t]he Committee amendment... strengthens the consultation requirement... to consult regularly with State and local governments... on the sponsorship and placement process * * * [t]he Committee emphasizes that these requirements are 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.
H.R. Rep. No. 99-132, at 19 (1985) (emphasis supplied).16 In short, the Order clearly appears to fall within the third level category of assessing Executive Power that Justice Jackson described in the Youngstown case, namely – it seems to be a measure “incompatible with the expressed or implied will of Congress”, “a power at once so conclusive and preclusive [that it] must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” 343 U.S. at 637-8, 72 S.Ct. 863 (Jackson, J., concurring).
Executive practice vis-à-vis the statutorily mandated consultation arrangement is also highly relevant. Compare Trump v. Hawaii, 138 S. Ct. at 2413. Consultation between and among the State and Local Governments and the Resettlement Agencies has, from all reports, worked quite smoothly since the 1986 amendments to the Refugee Act gave States and Local Governments a more active voice in the process. In searching for a rational basis justifying the Order (or, alternatively, a basis that is not arbitrary and capricious), one is left to wonder exactly what the rationale is for doing away entirely with a process that has worked so successfully for so long. And why now?
Not surprisingly, three federal court decisions of recent vintage have declared in effect that, while the Federal resettlement authorities are obviously empowered to make the final decision as to where refugees will be resettled,

HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)
State and Local Governments do not have the authority to block the Federal resettlement decisions. See Exodus Refugee Immigration, Inc. v. Pence, et al., 838 F.3d 902 (7th Cir. 2016) (Posner, J.) (affirming issuance of preliminary injunction against then-Governor Pence of Indiana and others who directed state agencies not to pay federal grant funds to private refugee settlement agencies for social services provided to Syrian refugees that might be settled in Indiana); Alabama v. United States, 198 F. Supp. 3d. 1263, 1266 (N.D. Ala. 2016) (granting Federal Government’s motion to dismiss where Governor of Alabama directed all Alabama agencies “to utilize all lawful means to prevent resettlement of Syrian refugees in the State of Alabama”): Texas Health and Human Services Commission v. United States, 193 F. Supp. 3d. 733 (N.D. Texas 2016) (granting Federal Government’s and Resettlement Agency’s motion to dismiss action by Texas commission seeking declaratory judgment that would effectively permit State to block resettlement of Syrian refugees).17
*11 More important, perhaps most important – beyond analysis of the statutory text, statutory structure and purpose, beyond legislative history, beyond executive practice and judicial decisions – a potentially insuperable Constitutional barrier looms. See Trump v. Hawaii, 138 S. Ct. at 2415. Which is precisely this: The power to admit or exclude non-citizens is “exclusively” federal in nature. See DeCanas v. Bica, 424 U.S. 351, 354, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976) (the “[p]ower to regulate immigration is unquestionably exclusively a federal power”); Truax v. Raich, 239 U.S. 33, 42, 36 S.Ct. 7, 60 L.Ed. 131 (1915) (enjoining enforcement of Arizona anti-alien labor law: “The authority to control immigration – to admit or exclude aliens – is vested solely in the Federal Government... The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the state would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the states as chose to offer hospitality”). Making the resettlement of refugees wholly contingent upon the consents of State or Local Governments, as the veto component of the proposed Order would have it, thus raises four-square the very serious matter of federal pre-emption under the Constitution. It is hard to see how the Order, if
8

implemented, would not subvert the delicate federal-state structuring contemplated by the Refugee Act.
But there is more: Plaintiffs have raised several valid concerns under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., which, even if not applicable to the President, do apply to Defendants Pompeo, Azar and Wolf. Most fundamentally, of course, the Order appears to be “unlawful”, 5 U.S.C. § 706(2); it may also fairly be characterized as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”, id. at 2(A), among other things because it “entirely fails to consider an important aspect of the problem”, Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). For instance, one matter glaringly omitted is the effect of the Order on the reliance interests of the Resettlement Agencies, and State and Local Governments, engendered by previous policy. See Encino Motorcars, LLC v. Navarro, ––– U.S. ––––, 136 S. Ct. 2117, 2126, 195 L.Ed.2d 382 (2016).
The Court finds that Plaintiffs have preliminarily demonstrated that, as of the date of the promulgation of the Funding Notice,18 Defendants Pompeo, Azar, and Wolf failed to adequately consider a number of critical factors in promulgating the Notice:19 For example: (1) precisely why should the prior statutory policy of consultation involving Resettlement Agencies should be modified; (2) how would the matter of “secondary migration”, see 8 U.S.C. § 1522(a)(2)(C)(iii)(IV), be handled, i.e. what would happen if a refugee admitted to one jurisdiction were to re-migrate to a nonconsenting State or locality, especially if the refugee had family or other ties there; (3) to what extent might State and Local Governments’ decisions to exclude refugees be based on bias or other prohibited discriminatory considerations,20 particularly if the State or Local Government declines to give any reason for not consenting – which the Order permits them to do; (4) how could the Resettlement Agencies be expected to deal with the complexity of identifying and gaining the consent of multiple State and Local Governments, given their highly diverse nature; (For example, does the “State” mean the Governor of the State or a State regulatory agency or both?; Does the “Local Government” mean the County – the county executive or the county commissioners or both? And why a County? What about States that have geographic regions called counties, but no real county governments?; It is not entirely clear if any cities could be considered a “Local Government” under the Order. But if so, who would speak for the city – the city council, the mayor, or some

HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)
other entity or person? Add to this the reasonable prospect of collateral litigation, even public referenda, challenging who has authority under the Order to decide whether consent should be given or withheld by a State or Local Government and whether the refusal to consent by an unwelcoming State will prevent resettlement of refugees in a willing county or city within that State);21 (5) what account was taken or should have been taken with respect to the reliance of Resettlement Agencies on the previous policy of resettlement over many years, including their well-developed relationships with local organizations, as well as their establishment and maintenance of local resettlement sites and their undertakings with local suppliers and vendors; (6) what consideration was given to foster families that have undergone extensive preparations to take in refugee children in accordance with the Unaccompanied Refugee Minors (URM) Program, see 8 U.S.C. § 1522(d)(2); and (7) what will be the effect of the Order on investments, including infrastructure improvements, that some States and local communities have made over the years in reliance on the presence of refugees, if they are no longer permitted to resettle in those jurisdictions?
*12 At a minimum, the Court is persuaded that, on the merits, Plaintiffs will be able to demonstrate, at least as to the cabinet secretaries, that in one or more respects, the Order’s grant of veto power is arbitrary and capricious, see 5 U.S.C. § 706(2)(A), as well as inherently susceptible to hidden bias.
Over all, then, Plaintiffs have demonstrated to the Court’s satisfaction, based on statutory text and structure, purpose, legislative history, judicial holdings, executive practice, the existence of a serious constitutional concern over federal pre-emption, and numerous arbitrary and capricious administrative deficiencies, that, on the merits, they are clearly likely to succeed in showing, that, by giving States and Local Governments veto power over the resettlement of refugees within their borders, the Order is unlawful.
B. Irreparability of Harm Plaintiffs submit they have also shown that they will be irreparably harmed (indeed they say they are already irreparably harmed) if the Order and Funding Notice continue in effect and if refugee resettlement becomes conditioned upon obtaining written consents from State and Local Governments. The Court agrees.
9

By January 21, 2020, just 13 days following briefing and oral argument on the Motion for Preliminary Injunction, Plaintiffs must complete their submissions of proposals to cover their imminent operations. Until then, indeed during the run-up since the Order was promulgated at the end of September 2019, in addition to having to puzzle through the exact reach of the Order and Funding Notice, Plaintiffs suggest they have been and will continue to be in a “frenzy” to obtain written consents from State and Local Governments in order to be in compliance. ECF No. 18, p.7. This can hardly be disputed. Plaintiffs will continue to be in a scramble, required to spend excessive hours in manpower and resources trying to obtain the required written consents. As a result, they will continue to be diverted from their main purpose and mission. The hours and resources they have been and will be required to expend will not only be irretrievable; they represent efforts and expense that could much more appropriately be used to provide the multiple services that Plaintiffs traditionally provide for refugees. With the Order, moreover, Plaintiffs will almost certainly need to reduce the number of their personnel and continue to close down operations in the non-consenting States and locales. These are immediate tangible concerns of material dimension. The almost inevitable loss of good will and harm to reputation, at least in non-consenting States and localities, will compound Plaintiffs’ injuries. See, e.g., Fed. Leasing Inc. v. Underwriters at Lloyd’s, 650 F.2d 495, 500 (4th Cir. 1981) (irreparable harm established where a plaintiff “seeks to preserve its existence and its business” and where a defendant’s ongoing acts endanger “the good will built by a heretofore successful enterprise”).22
*13 Monetary damages cannot fairly compensate for most, if not all, of the highly likely consequences just described. The Court finds more than enough substance in Plaintiffs’ overall parade of horribles to demonstrate that, as of this very moment, they will be irreparably harmed if a preliminary injunction does not issue.23
C & D. Balance of Equities and the Public Interest Since the Government is a party to the suit, the balance of equities and the public interest may be considered in tandem. See, e.g., Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). Plaintiffs urge the importance of maintaining for the present the long-standing, carefully crafted humane program that places refugees in communities where they can thrive – informed, to be sure, by at least some input from the Resettlement Agencies themselves and the States and

HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)

local communities as to where the refugees will actually go. On the other hand, if the Order is implemented, apart from the considerable dislocations Plaintiffs will suffer, many refugees may find themselves at least in limbo, denied services congressionally intended to help them effectively integrate into new homes.
The Court finds no countervailing equity considerations favoring Defendants’ desire that the Order be implemented without delay, other than to finally cede to some States and Local Governments a power that for several years they have attempted to secure but have been squarely blocked from securing by legislation and litigation: To keep unwanted refugees out of their communities. There is no imminent harm to the Government if it is simply required to keep on doing what it has been doing for decades. The balance of equities for preliminary injunction purposes clearly favors Plaintiffs.

their existence and operations. League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016). By giving States and Local Governments the power to veto where refugees may be resettled – in the face of clear statutory text and structure, purpose, Congressional intent, executive practice, judicial holdings, and Constitutional doctrine to the contrary – Order 13888 does not appear to serve the overall public interest. Granting the preliminary injunctive relief Plaintiffs seek does. Refugee resettlement activity should go forward as it developed for the almost 40 years before Executive Order 13888 was announced.24
X. Conclusion *14 For the following reasons, Plaintiffs’ Motion for Preliminary Injunction with respect to the Order and the Funding Notice will be GRANTED.

As for the public interest, there is without a doubt public interest in keeping “the President from slipping the boundaries of a statutory policy and acting based on irrelevant policy preferences”. Driesen, supra, at 1045; see also Panama Ref. Co, 293 U.S. at 431-33, 446, 55 S.Ct. 241 (1935) (majority and dissenting opinions). There is also a substantial public interest in having governmental agencies abide by federal laws that govern

A separate Order will issue.
All Citations --- F.Supp.3d ----, 2020 WL 218646

Footnotes

1

Plaintiffs do not seek to enjoin the President. See ECF No. 60, p. 9. Rather, they seek to enjoin his cabinet officers for their roles in

developing and implementing the Order. Id.; see Franklin v. Massachusetts, 505 U.S. 788, 828, 112 S.Ct. 2767, 120 L.Ed.2d 636

(1992) (Scalia, J., concurring) (“Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin

the officers who attempt to enforce the President’s directive”).

2

The Court has received amici briefs from Former State Department Officials, including individuals who have served as Assistant

Secretary of State for Population, Refugees, and Migration Affairs (Anne Claire Richard) and Director of the Bureau for Refugee

Program (James Nelson Purcell, Jr.)(ECF No. 35-1); from several States including California, Illinois, Maryland, Connecticut,

Massachusetts, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Virginia and Washington (ECF No. 36); from Cities,

including, among others, New York, Los Angeles, Chicago, Philadelphia, Minneapolis, and San Francisco; the Mayors of Detroit,

Phoenix, Salt Lake City, Seattle, and’ San Jose and the U.S. Conference of Mayors (ECF No. 43-1); and from various faith-based

organizations with hundreds of affiliates throughout the country (ECF No. 45-1). All amici are in agreement with Plaintiffs that

Order 13888 is unlawful.

3

In contrast to a “refugee” as defined herein, an “asylum-seeker” also seeks protection from persecution in his or her home

country, but their claim for refugee status has not been legally determined. Asylum-seekers must apply for protection in the

country of their destination – meaning that they must be within the country of their destination in order to apply. An

“immigrant” may also be distinguished; he or she is a person who merely desires to leave one country and settle in another. The

person’s immigration into a given country, including the U.S., typically involves extensive vetting. Many immigrants are

eventually able to obtain lawful immigration status and some in time may become citizens. A “migrant” is simply someone who

moves from one place to another (within his or her country or across borders) – seasonal workers are a good example – but they

do not assert fear of persecution or violence, and, with certain restrictions, may come and go or go between given countries.

International Rescue Committee (IRC), Migrants, asylum seekers, refugees and immigrants: What’s the difference?,

10

HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)

https://www.rescue.org/article/migrants-asylum-seekers-refugees-and-immigrants-whats-difference (last visited Jan. 13, 2020); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

4

Karen Musalo, Jennifer Moore, Richard A. Boswell & Annie Daber, Refugee Law and Policy 37-39 (5th ed. 2018) (citing Statute of

the Office of U.N. High Comm’r for Refugees, G.A. Res. 428 (V), annex, (Dec. 14, 1950) and 1951 Convention Relating to the

Status of Refugees art. 1, Jul. 28, 1951, 189 U.N.T.S. 137).

5

Id. at 73-74; see also INS v. Stevic, 467 U.S. 407, 416, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984).

6

Id. at 83.

7

Except as otherwise indicated, when the Court refers to “refugees” hereafter, it is referring to this special category of “refugees”.

8

UNHCR, Refugee Resettlement Facts, https://www.unhcr.org/un.us/resettlement-in-the-united-states.html (last visited Jan. 13,

2020); see generally U.N. High Commissioner on Refugees, UNHCR Resettlement Handbook (2011).

9

An estimated 150,000 to 200,000 persons outside the U.S. (where proposed refugees must reside until ready for resettlement)

are currently seeking to be designated as refugees in order to resettle in the U.S. See Transcript of Oral Argument at 37 (Jan. 8,

2020) (Civ. No. PJM-19-3346).

UNHCR estimates that 25.9 million individuals world-wide were in need of resettlement at the end of Fiscal Year 2018. See Dep’t

of State, Dep’t of Homeland Security & Dep’t of Health and Hum. Servs., Report to Congress: Proposed Refugee Admissions for

Fiscal Year 2020 (2019) at 11; see also UNHCR, Figures at a Glance, https://www.unhcr.org/en-us/figures-at-a-glance.html (last

visited Jan. 13, 2020).

10 Resettlement Agencies such as Plaintiffs are given an express consultative role in the resettlement process that, as to nonconsenting States and Local Governments, the Order would abolish. As will be shown, Plaintiffs’ prospective loss of their statutory right to be consulted in the resettlement process and their consequent financial losses and prospective loss of good will are “concrete” and “particularized” and “actual and imminent, not conjectural or political” and are of the type “traditionally thought to be capable of resolution through the judicial process.” In other words, Plaintiffs have established injury-in-fact, traceable to Executive Order 13888, that could be favorably addressed by enjoining the enforcement of the Order in whole or part. This means Plaintiffs have satisfied each of the elements required for Article III standing. See Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016); Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). Plaintiffs also satisfy any requirement for prudential standing since they are clearly within the zone of interest contemplated by 8 U.S.C. § 1522. See Bank Am. Corp v. City of Miami, ––– U.S. ––––, 137 S. Ct. 1296, 1302-03, 197 L.Ed.2d 678 (2017).

11 Defendants argue that the Order does not give veto power to the State and Local Governments, suggesting that instead the purpose of the Order “is to enhance the consultation between the Government and States and localities”. ECF No. 54, p. 22. This borders on Orwellian Newspeak. Giving States and Local Governments authority to block resettlement unless they consent in writing more than “enhances” their authority. It grants them veto power. Period. Defendants’ suggestion that the Secretary of State can theoretically require a non-consenting State or Local Government to accept refugees is not only extremely unlikely to occur; neither the Executive Order nor the Funding Notice disclose how the matter might be presented to the Secretary to decide. Defense counsel, at oral argument, was unable to elaborate. But, insofar as Defendants rely upon a “savings clause” in the Order, viz. that the Secretary can direct a non-consenting State or locality to accept refugees if the Secretary concludes that “failing to resettle refugees within [a non-consenting] 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”, Order § 2(b), the clause is essentially meaningless. Section 8 U.S.C. § 1522(a)(2)(B) requires that “[t]he Director shall 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”. While subsection (C) refers to the traditional factors for resettlement, “other applicable law” includes, among other things, all of the rest of § 1522. But that is precisely the point of Plaintiffs’ claim. The Order, they say, is “inconsistent” with 8 U.S.C. § 1522(a)(2)(B) and (C) because the “voluntary agencies”, i.e. Plaintiffs, would have their consultative role with non-consenting States taken away by the Order. Cf. City and County of San Francisco v. Trump et al., 897 F.3d 1225, 1239 (9th Cir. 2018) (“Savings clauses are read in their context, and they cannot be given

11

HIAS, Inc. v. Trump, --- F.Supp.3d ---- (2020)
effect when the Court... would override clear and specific language”).
12 Defendants state that Plaintiffs will actually be able to submit consents until June 1, 2020 when the grant period begins.
13 It has been argued that, even though the APA does not apply to the President, many cases ostensibly proceeding on the basis of the rationality test of the President’s authority have in fact tacitly applied an arbitrary and capricious standard. See Driesen. op. cit., 1018 et seq. The Court need not probe this argument, however, since insofar as the Order is unlawful, as the Court believes Plaintiffs have preliminarily shown, it would fail both the rationality and arbitrary and capricious tests.
14 The States and Cities and Mayors, in their amici briefs, have declared their willingness to receive refugees, stressing the positive impacts the refugees have on economic conditions, as well as the social and cultural contributions they make in their respective locales.
15 At oral argument, defense counsel was unable to articulate why or how consultations and meetings with the Resettlement Agencies might continue if a State’s consent to resettlement is not forthcoming. See Transcript of Oral Argument at 77, 79-80 (Jan. 8, 2020) (Civ. No. PJM-19-3346).
16 See also 8 U.S.C. § 1522 (a)(4)(c) (“The Director may not delegate to a State or political subdivision the authority to review or approve grants or contracts under this chapter or the terms under which such grants or contracts are made”).
17 Relying principally on the Texas and Alabama cases, Defendants devote a considerable portion of their Opposition Brief to arguing that Plaintiffs have no private right of action under the Refugee Act of 1980. See ECF No. 18, p. 17. It is true that those two cases discussed the right to a private cause of action in the context of the Refugee Act of 1980, but notably, as indicated in the text, supra, both cases effectively held that State Governments had no right to block federal enforcement of the Act in their respective States. Neither case, moreover, involved an attempt by the Executive, potentially unconstitutionally, to abolish altogether any role the States might have in consulting with respect to the resettlement of refugees, determining only that the Federal Government was not obliged to provide information demanded by the States relating to the proposed resettlement of refugees. In any event, whether it was necessary or even appropriate to delve into the existence vel non of the private right of action issue in those two cases, it is clear that that issue has not even been raised much less discussed in the most recent challenges to Presidential authority in regard to immigration issues. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392 passim. That is because no specific cause of action is required. See, e.g., INS v. Chadha, 462 U.S. 919, 953, n. 16, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (executive action “is always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judicial review”).
18 Defendants argue that there has been no final agency decision regarding the Order, which they say will not occur until the grant period beginning June 1, 2020. See ECF No. 54, p. 14. They cite Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), which establishes two elements for there to be finality: (1) The action must be outcome-determinative, not merely tentative or interlocutory in nature and (2) rights and obligations must have been determined, from which legal consequences will flow. Continuing, Defendants say, a “mere request for funding applications... does not satisfy [these] criteria”. ECF No. 54, p. 18. Plaintiffs accept Bennett as controlling. See ECF No. 60, p. 14. But the Court agrees with Plaintiffs that they have in fact demonstrated the finality of the Order and Funding Notice. Applying a pragmatic rather than a formulaic analysis, see U.S. Army of Eng’rs. v. Hawkes Co., ––– U.S. ––––, 136 S. Ct. 1807, 1815, 195 L.Ed.2d 77 (2016), Plaintiffs point out that the Order and Funding Notice are most definitely outcome-determinative because they determine eligibility for funding in certain jurisdictions in the first place. ECF No. 60, p. 15. Rights and consequences clearly flow from both the Order and Funding Notice for the same reason. Absent consents, there is no eligibility for a grant to provide resettlement services in a non-consenting State or locality.
19 Defendants, in their Opposition Brief, rely heavily on a declaration from Andrew M. Veprek, Deputy Assistant Secretary of State in the Bureau of Population, Refuges, and Migration (PRM) of the Department of State, who oversees the Department’s functions in the U.S. Refugee Admissions Program (RAP) under the Refugee Act of 1980. Plaintiffs have moved to strike the declaration as being post-hoc rationalizations as to why and how Executive Order 13888 came into being. See, e.g., Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam) (“In applying [the APA’s arbitrary and capricious standard], the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.”). That said, much of the affidavit, as Plaintiffs concede, is merely explanatory and unobjectionable. Plaintiffs’ objection, as clarified by their counsel at oral argument, is that, whether or not they were entitled to prior notice and an opportunity to
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comment (on either the Order or Funding Notice), the record leading up to the promulgation of the Order and Funding Notice is bare. See Transcript of Oral Argument at 7 (Jan. 8, 2020) (Civ. No. PJM-19-3346). Yet, Plaintiffs submit, Defendants do not contend there was no record at the time of promulgation; they deem it irrelevant and simply decline to disclose it. Id. Apart from what in fact do appear to be post-hoc rationalizations, the Court sees nothing in the affidavit that runs counter to the Government’s apparently unilateral, unexplained, and unalterable decision that, unless State or Local Governments consent in writing by a date certain – for any reason or no reason – there will be no resettlement of refugees in that State or local community. With these observations in mind, Plaintiffs’ Motion to Strike, ECF No. 56, is DENIED.
20 See 8 U.S.C. 1522(a)(5) (“Assistance and services funded under this section shall be provided to refugees without regard to race, religion, nationality, sex, or political opinion”); see also Exodus Refugee Immigration, Inc., 838 F.3d at 904-05 (holding that then Indiana Governor Pence’s attempt to prevent resettlement of Syrian refugees based on “security concerns” amounted to discrimination based on nationality).
21 Defendants concede that the Governor of a State, appealing to some constituents, could block resettlement in a city that in fact declares itself wholly disposed to welcome the refugees. The reverse situation is also problematic. As the States argue in their amicus brief, see ECF No. 36, p. 10, if a State consents to resettlement, but a county (or city) objects, allowing the localities to veto resettlement in their jurisdictions would appear to interfere with the sovereign prerogative of the State to set statewide policy.
22 Plaintiffs also raise a not implausible concern over whether their solicitation of written consents from State and Local Governments might constitute lobbying activities affecting their status or tax-exempt 501(c)(3) status. See Treas. Reg. § 1.501(c)(3)-1(c)(3)(ii). While Defendants suggest that this is an unfounded fear, the Court finds it unnecessary to consider the merits of this argument.
23 Defendants suggest that “[t]he requirement to seek State and local consents harms Plaintiffs only insofar as it puts Plaintiffs to a choice: obtain the consents or forego receiving grant funding”. ECF No. 54, p. 31. This is a Hobson’s choice. It implies that the Resettlement Agencies have freedom to decide, but in fact the only options the Order and Funding Notice offer are obtaining the consents or taking nothing. But, as Plaintiffs point out, by foregoing grant funding in a given jurisdiction they would essentially be out of the business of resettling refugees in the jurisdiction altogether, a core part of their mission. See ECF No. 60, p. 20. And even if private funding were available, Plaintiffs could, presumably, still not go into those States or localities that refuse to consent to resettlement.
24 Defendants ask, if the Court is inclined to issue a Preliminary Injunction, that it be limited to the three named Plaintiffs. ECF No. 54, p. 36. Defense counsel, at oral argument, conceded that this would “create potential difficulties” and could not describe how the distinction between the three Resettlement Agencies that are Plaintiffs and the six which are not might work in practice. Transcript of Oral Argument at 105 (Jan. 8, 2020) (Civ. No. PJM-19-3346). Presumably the three Plaintiff Resettlement Agencies could continue to exercise the right to consult and meet with State and Local Governments that might otherwise not want to consent to the presence of refugees, whereas the six non-plaintiff Resettlement Agencies would be completely cut off from engaging with those same State and Local Governments. With impractical, unfair consequences such as this, Defendants’ request falls of its own weight.
13

 
 Hias, Inc. v. Trump, 985 F.3d 309 (2021)

985 F.3d 309 United States Court of Appeals, Fourth Circuit.
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, CA; 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.
No. 20-1160 |
Argued: October 27, 2020 |
Decided: January 8, 2021
Synopsis Background: Private resettlement agencies filed suit against President, Secretary of State, Secretary of Health and Human Services, and Secretary of Homeland Security, claiming that President’s executive order and implementing notice violated Refugee Act, principles of federalism, and Administrative Procedure Act (APA) by creating “opt-in” system requiring that both state and locality provide their affirmative consent before refugees could be resettled in their jurisdictions. The United States District Court for the District of Maryland, Peter J. Messitte, Senior District Judge, 415 F.Supp.3d 669, granted agencies’ motion for preliminary injunction prohibiting enforcement of order and notice, and issued nationwide injunction. Government appealed.
Holdings: The Court of Appeals, Keenan, Circuit Judge, held that:
agencies were likely to succeed on claim that order and notice violated Refugee Act;
agencies would likely suffer irreparable harm absent injunction;
balance of harms favored preliminary injunction;
public interest supported preliminary injunction; and
issuance of nationwide injunction was not abuse of discretion.
Affirmed.
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Hias, Inc. v. Trump, 985 F.3d 309 (2021)
Procedural Posture(s): Interlocutory Appeal; Motion for Preliminary Injunction.
*312 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)
Attorneys and Law Firms
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 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 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.
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Hias, Inc. v. Trump, 985 F.3d 309 (2021)
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, 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.
Before KING, KEENAN, and HARRIS, Circuit Judges.
Opinion
Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge King and Judge Harris joined.
BARBARA MILANO KEENAN, Circuit Judge:
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Hias, Inc. v. Trump, 985 F.3d 309 (2021)
*315 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, *316 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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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.
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 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 *317 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 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
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Hias, Inc. v. Trump, 985 F.3d 309 (2021)
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
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 *318 (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. 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
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Hias, Inc. v. Trump, 985 F.3d 309 (2021)
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.
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. *319 Id. at 320 (citing Winter, 555 U.S. at 20, 129 S.Ct. 365). 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 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, 125 S.Ct. 1536, 161 L.Ed.2d 410 (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 added). The Act also requires that the Secretary5 “consult regularly (not less *320 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
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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 ....
§ 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 deliberate. Consult, Webster’s Third New International Dictionary, Unabridged (2020). Notably, by imposing only *321 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 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
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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 *322 Order’s consent requirement 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 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 resettlement is appropriate *323 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.
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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 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, 111 S.Ct. 2476, 115 L.Ed.2d 532 (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, 84 S.Ct. 1362, 12 L.Ed.2d 506 (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 *324 views of the state will be “take[n] into 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-secondlanguage training (in nonwork hours where possible), and case-management services ....” § 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
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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 *325 shall notify the President of such decision, along with the reasons for the decision, before proceeding.
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,” 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.
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B.
We turn to consider the remaining Winter factors, namely, whether the plaintiffs *326 are likely to suffer irreparable harm in the absence of an injunction, whether the balance of 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. 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, ––– U.S. ––––, 137 S. Ct. 2080, 2087, 198 L.Ed.2d 643 (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.
We conclude that the district court did not abuse its discretion in issuing a nationwide injunction. The refugee resettlement *327 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
All Citations
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Footnotes

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.

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.

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.

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).

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). 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.”

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
12

Hias, Inc. v. Trump, 985 F.3d 309 (2021) be resettled in the state at all.
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).
13