### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 1509

E XODUS R EFUGEE I MMIGRATION

, I NC

. , Plaintiff

‐ Appellee

,

v.

M ICHAEL R. P ENCE

, in his official capacity as Governor of

Indiana, et al.

, Defendants

‐ Appellants

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana.

No. 1:15

‐ cv

‐ 01858

— Tanya Walton Pratt

, Judge

.

____________________

A RGUED S EPTEMBER 14, 2016

— D ECIDED O CTOBER 3, 2016

____________________

Before P OSNER

, E ASTERBROOK

, and S YKES

, Circuit Judges

.

P OSNER

, Circuit Judge

. The State of Indiana appeals from

the grant of a preliminary injunction to a private agency

named Exodus that assists refugees, some of whom are Syri

‐

an refugees, the state’s target.

The regulation of immigration to the United States, in

‐ cluding by refugees (people who have fled their homeland,2 No. 16

‐ 1509

and unable to return because of threat of persecution seek to

relocate in a country in which they’ll be safe), is a federal re

‐ sponsibility codified in the Immigration and Nationality Act,

8 U.S.C. §§ 1101 et seq

. That Act has been amended by the

Refugee Act of 1980, which authorizes the President to de

‐

termine, on the basis of “humanitarian concerns or

... the

national interest,” how many refugees to admit each year. 8

U.S.C. § 1157(a)(2). The President fixed the number at 85,000

for fiscal year 2016, of whom at least 10,000 were to be per

‐

sons coming to the United States from Syria, in recognition

of the horrendous conditions in Syria resulting from that na

‐

tion’s civil war, now entering its sixth year.

Because of fear of terrorist infiltration––apart from the

massive 9/11 terrorist attacks, Boston, New York, and San

Bernardino (California) have been targets of terrorist attacks

since 2001 by persons not born in the United States––all per

‐

sons seeking to enter the United States as refugees are re

‐ quired to undergo multiple layers of screening by the federal

government, following screening by the United Nations

High Commissioner for Refugees, before they can be admit

‐

ted to the United States. The process can take up to two

years. Of course there can be no certainty that no terrorist

will ever slip through the screen, elaborate though it is; for

there has been terrorist infiltration of this country since 9/11

and there is a specific concern about Syrian refugees: many

of them were born elsewhere, moved at some point to Syria,

became caught up in the civil war there, sought to escape

from that embattled nation in which hundreds of thousands

of civilians have been killed, and are difficult to screen be

‐

cause little may be known about their life either in Syria or

in their country of origin if different from Syria. (We’ll refer

to all of them as “Syrians,” though many of them were onlyNo. 16

‐ 1509 3

transitory residents of Syria.) The governor of Indiana be

‐

lieves, though without evidence, that some of these persons

were sent to Syria by ISIS to engage in terrorism and now

wish to infiltrate the United States in order to commit terror

‐

ist acts here. No evidence of this belief has been presented,

however; it is nightmare speculation.

A portion of the Refugee Act codified at 8 U.S.C. § 1522

and entitled “Authorization for programs for domestic reset

‐

tlement of and assistance to refugees” allows the federal

government to give states money to assist refugees to be

‐

come integrated into American society. The particular aims

of the statute are to “(i) make available sufficient resources

for employment training and placement in order to achieve

economic self

‐ sufficiency among refugees as quickly as pos

‐

sible, [and] (ii) provide refugees with the opportunity to ac

‐ quire sufficient English language training to enable them to

become effectively resettled as quickly as possible.” 8 U.S.C.

§ 1522(a)(1)(A).

To receive the federal money a state must submit to the

federal Office of Refugee Resettlement a plan for using the

money to assist refugees to achieve economic self

‐ sufficiency. 8 U.S.C. § 1522(a)(6). Indiana has submitted such

a plan and it’s been approved. Under the plan the state con

‐

tracts with private resettlement agencies for the provision of

social services to refugees, and the agencies are reimbursed

by the state for the cost.

Another section of the Refugee Act provides that “ser

‐

vices funded under this section shall be provided to refugees

without regard to race, religion, nationality, sex, or political

opinion.” 8 U.S.C. § 1522(a)(5). But the governor of Indiana

has refused to pay for providing these services to any refu

‐4 No. 16

‐ 1509

gee whose “‘country of origin’ denominated on refugee doc

‐

uments” is Syria. (A refugee’s country of origin is deemed

his nationality unless he’s stateless, in which event it’s the

nation in which he last resided. 8 U.S.C. § 1101(a)(42)(A).)

Fearing that Syrian immigrants may be potential terrorists,

the governor wants to minimize their number in Indiana.

Acknowledging that he can’t close Indiana’s borders to

them, he has shifted focus to the plaintiff in this case––

Exodus, a private nonprofit resettlement agency in Indiana

that seeks to help refugees, including Syrian refugees, adjust

to life in Indiana. Exodus has a contract with the state that

entitles the agency to be reimbursed for providing social

services to resettled refugees, but the governor has forbid

‐

den Exodus or any other resettlement agency to be reim

‐

bursed for the costs of providing social services to Syrian

refugees.

In fiscal year 2015 Exodus received roughly $1 million

from the state for provision of social services and used the

money to help 892 refugees, none of them Syrian. It expected

to get a hundred or more Syrian refugees the next year,

which would be this year, but we don’t know how many it’s

gotten so far. We know that 174 Syrian refugees came to In

‐

diana in the last fiscal year, but not how many of them are

being helped by Exodus. But we do know for certain that

Exodus will receive nothing from the state for Syrian refu

‐

gees this year unless we affirm the preliminary injunction.

Without the injunction, Exodus, if unable (as it fears) to ob

‐

tain the necessary funds from another source, will be unable

to provide essential assistance to the refugees. Most of them

may therefore decide to resettle in other states––exactly what

the governor of Indiana wants––in the face of the statutory

provision we cited that forbids a state in distributing fundsNo. 16

‐ 1509 5

received from the federal government under 8 U.S.C.

§ 1522(a)(5) to discriminate on the basis of “race, religion,

nationality

, sex, or political opinion” (emphasis added).

The governor’s brief asserts “the State’s compelling inter

‐

est in protecting its residents from the well

‐ documented

threat of terrorists posing as refugees to gain entry into

Western countries.” But the brief provides no evidence that

Syrian terrorists are posing as refugees or that Syrian refu

‐

gees have ever committed acts of terrorism in the United

States. Indeed, as far as can be determined from public

sources, no Syrian refugees have been arrested or prosecuted

for terrorist acts or attempts in the United States. And if Syr

‐

ian refugees do pose a terrorist threat, implementation of the

governor’s policy would simply increase the risk of terror

‐

ism in whatever states Syrian refugees were shunted to. Fed

‐

eral law does not allow a governor to deport to other states

immigrants he deems dangerous; rather he should com

‐

municate his fears to the Office of Refugee Resettlement.

He argues that his policy of excluding Syrian refugees is

based not on nationality and thus is not discriminatory, but

is based solely on the threat he thinks they pose to the safety

of residents of Indiana. But that’s the equivalent of his say

‐ ing (not that he does say) that he wants to forbid black peo

‐ ple to settle in Indiana not because they’re black but because

he’s afraid of them, and since race is therefore not his motive

he isn’t discriminating. But that of course would be racial

discrimination, just as his targeting Syrian refugees is dis

‐

crimination on the basis of nationality.

A final oddity about the governor’s position is how iso

‐

lated it is. There are after all fifty states, and nothing to sug

‐

gest that Indiana is a magnet for Syrians. Although in the fall6 No. 16

‐ 1509

of 2015 a number of state governors issued statements op

‐ posing the resettlement of Syrian in their domains, their op

‐ position petered out. Since then Syrian refugees have been

resettled in 40 states (Indiana of course is one of them), and

there is no indication that their absence from the other 10 is

attributable to actions by state governments. Indiana is free

to withdraw from the refugee assistance program, as other

states have done; yet withdrawal might not interrupt the

flow of Syrian refugees to the state because in states that

choose not to participate in the refugee assistance program

the federal government has been authorized to establish an

alternative program, called Wilson/Fish, that distributes fed

‐

eral aid to refugees in a state without the involvement of the

state government. 8 U.S.C. § 1522(e)(7); 45 C.F.R. § 400.69.

The district judge granted a preliminary injunction in fa

‐

vor of Exodus because she believed it likely to prevail in the

trial on the merits that is the usual next stage of litigation af

‐

ter the issuance of such an injunction. She was right, and

therefore the preliminary injunction is

A FFIRMED

.