The Court Telling Texas NO on Barring Refugees

Federal Court Declines to Bar the Resettlement of

Syrian Refugees in Texas


FAS: In a decision issued on February 8, 2016, a federal district court denied the State of Texas’s request that the federal

government and a private refugee relief organization be temporarily barred from resettling Syrian refugees within the

state pending resolution of Texas’s challenge to such resettlement. Texas had filed this suit in December 2015, after

terrorist attacks in Paris, France and San Bernardino, California, perpetrated by persons with ties or allegiance to the

Islamic State, due to concerns that terrorists could enter the United States through the refugee resettlement program.

The court’s decision focused on the standards that plaintiffs must meet to obtain a preliminary injunction, discussed

below. However, in so doing, the court construed language in Section 412 of the Immigration and Nationality Act

(INA) requiring the federal government to “consult regularly … with State and local governments” about refugee

placement. The court’s reading of this provision could have implications for certain congressional proposals to give

states greater control over refugee resettlement.

Overview of the Court’s Decision

The court denied the preliminary injunction, in part, because it found that Texas had failed to establish a substantial

threat of irreparable injury if the federal government and the private refugee relief organization were allowed to resettle

Syrian refugees in Texas. Such a showing is required for a preliminary injunction, along with a showing that (A) the

party seeking the injunction has a substantial likelihood of success on the merits; (B) the alleged injury, if the injunction

is denied, outweighs any harm that would result if the injunction is granted; and (C) the grant of an injunction will not

disserve the public interest.

In finding that Texas failed to meet its burden of showing irreparable injury, the court noted that the evidence produced

by Texas showed only that “Syrian refugees pose some risk.” Texas did not, in the court’s view, demonstrate that

terrorists have infiltrated the refugee program, or that the particular individuals whose settlement Texas sought to block

are refugees “intent on causing harm.” It thus found the evidence “insufficient” to establish a substantial risk of

irreparable injury. The court similarly rejected Texas’s argument that it was irreparably harmed because the defendants’

failure to provide Texas with detailed information about any refugees settled in Texas deprived Texas of an alleged

statutory right to foreknowledge” of refugees’ backgrounds that had been created by INA §412’s requirement that

federal agencies consult with state and local governments about refugee placement. The court further found that a

clause in Texas’s contract with the relief organization, which purported to establish a presumption of irreparable harm

if the organization were to breach the contract was immaterial, since the clause is not binding on the court and does not,

in itself, justify the “extraordinary relief” of a preliminary injunction.

The court also found that Texas was unlikely to succeed on the merits of its challenge to the refugee resettlement plans

because “it has no viable cause of action” against the federal government. Texas’s argument here had been based, in

part, on its view that the federal government’s actions in resettling refugees in Texas run afoul of INA § 412, which, in

relevant part, provides that federal officials:

shall consult regularly (not less often than quarterly) with State and local government and private nonprofit

voluntary agencies concerning the [refugee] sponsorship process and the intended distribution of refugees among

the States and localities before their placement in those States and localities.

In particular, Texas took the view that this provision, along with the terms of its contract with private relief

organization, required it to receive detailed demographic, medical, security, and other information about individual

refugees before they are resettled in Texas.

The court did not reach the merits of this argument, instead finding that Texas cannot sue to enforce INA § 412 because

this provision does not create a private right of action. The court based this conclusion on Supreme Court precedents

finding that private rights of action to enforce federal law must be created by Congress, and the “judicial task is to

interpret the statute Congress passed to determine whether it displays an intent to create” such a right. In INA § 412,

the court found no such intent since the provisions of this section do not “confer any rights directly on the States.”

Instead, they are framed as a “general … command to a federal agency” to federal officials to consult with their state

counterparts. Such general prohibitions or commands have been seen as insufficient to create private rights of action in

other cases.

Implications of the Court’s Decision

The court’s finding that INA § 412 does not create a private right of action could have implications for certain proposals

in the 114th Congress to give states and localities greater input in the refugee resettlement process. Many proposed bills

would expressly authorize state officials to decline the resettlement of particular refugees within their jurisdictions, a

power which they lack under current law, as discussed in an earlier Sidebar posting. However, some bills take a

different approach and instead require that the federal government give state and local officials certain notices before

placing refugees within their jurisdiction. If Congress wants to ensure that states and localities can enforce such notice

requirements, it may wish to draft the latter type of measures in such a way that the statute can be seen as conferring

rights directly on the states and local governments, rather than imposing general commands on federal agencies. Only if

measures are so drafted would states and localities potentially be able to enforce the notice requirements (and even then

other limits on the federal courts’ jurisdiction could apply, such as the mootness doctrine, if for example, the refugees

are already settled within the state).


Undocumented Teachers in Your Child’s Classroom

So, no U.S. citizens with teaching certificates? Perhaps the mission is to lower payroll costs and meet quotas? Or join unions and teach selected history…

Is there a state left that can define what citizenship is? Is there a state that is protecting ‘the pursuit of happiness’? Apparently teaching, a noble profession, or at least used to be is no longer noble.

For reference, Tashfeen Malik, the female San Bernardino killer could have been a teacher in your child’s classroom, she came into the United States under false documents…no documents? What is the difference?

NY to let undocumented workers become teachers

ALBANY — Undocumented immigrants in New York will be able to apply for teacher certifications and professional licenses, according to the state Board of Regents.

The board that oversees education policies in New York voted Wednesday to allow people who can’t get legal residency because of their parents’ immigration status to seek teacher certifications. They also will be able to apply for a license from among the 53 professions overseen by the state Education Department, including a variety of medical professions.

“These are young people who came to the U.S. as children,” state Education Commissioner MaryEllen Elia said in a statement. “They are American in every way but immigration status. They’ve done everything right.  They’ve worked hard in school, some have even served in the military, but when it’s time to apply for a license, they’re told ‘Stop. That’s far enough.’ We shouldn’t close the door on their dreams.”

The Board of Regents pointed to a June 2012 policy by the Obama administration called the Deferred Action for Childhood Arrivals that allows individuals who came to the U.S. as children and meet certain guidelines to request consideration of “deferred immigration action” for two years that can be renewed.

The federal policy, the board said, applies to young people who usually get their immigration status from their parents, many of whom are undocumented.

“As a result, most of these individuals have no current mechanism to obtain legal residency, even if they have lived most of their lives in the U.S.” the Board of Regents said in a statement.

But people in the system are prohibited from obtaining teaching certification and licenses in certain professions, the board said, including pharmacy, dentistry and engineering.

The regulation by the Board of Regents will be finalized after a public-comment period.

Sen. Terrence Murphy, R-Yorktown, Westchester County, ripped the policy.

“Allowing lawbreakers to teach, or practice medicine, says a lot about how backwards our priorities truly are in New York,” Murphy said in a statement. “This is another example of why rule-making by unelected bureaucrats is what is ruining New York state. Will they next unilaterally enact free college tuition for illegal immigrants?”

He said New York doesn’t allow a military spouse with an equivalent license in another state to teach in New York, so “Elia should be focusing on reciprocity and interstate licensure for those who have earned it, instead of doing further harm to our already broken immigration system and rewarding lawbreakers.”

Gov. Andrew Cuomo said he has yet to review the new education policy to determine its legality.

“It depends on how they write the policy, as to whether or not it’s legal and constitutional, and I haven’t seen anything,” Cuomo said when asked about the policy by reporters Thursday in Albany.

Democratic lawmakers praised the action. Democrats have been pushing for the Dream Act in New York, which would allow immigrants in the country illegally to access state financial aid for college. Republicans have opposed the measure.

“This is a tremendous win for New York’s students,” Assembly Speaker Carl Heastie, D-Bronx, said in a statement. “The Assembly majority has always led the charge to expand opportunities for every student, and we have championed issues like the DREAM Act and greater investment in higher education to show our commitment to all of the families who have made New York their home.”



Obama Placing Legacy Above Truth in Cuba

First of 8,000 stranded Cuban migrants cross into US

MEXICO CITY (AP)— The first of 8,000 Cuban migrants recently stranded in Central America have crossed the Mexican border into the United States.

Some 180 migrants flew from Costa Rica to El Salvador, and have been making their way to the U.S., with the first reaching Laredo, Texas, on Thursday night.

“I’m a Cuban who has just acquired the American Dream,” said Daniel Caballero, one of the first to cross into Laredo, according to a Facebook posting of the sponsoring non-profit group, Cubans in Liberty.


 Cuban migrants are seen at an immigration facility after arriving by plane from Costa Rica to Nuevo Laredo

U.S. sees new wave of Cuban migrants


In Part from Panama City (AFP): The first flight left from Panama’s international airport. The foreign ministry said in a statement it would land in Juarez, a Mexican city on the US border. Other flights would follow this week.

It emphasized that the flights were a “limited” and “exceptional” measure.

They mirrored flights Costa Rica has been carrying out since January, for some 8,000 Cubans who had been stuck on its territory.

The Cubans aim to get to the United States where a Cold War-era law allows them easy entry and a fast-track to residency.

But their journey, to South America, up through Central America and then Mexico and the US border, was frustrated in November last year when Nicaragua — a Cuban ally — closed its borders to them, and Costa Rica dismantled a people-smuggling ring they had been relying on.

Costa Rica in December closed its own border to any more Cuban arrivals as it struggled to clear the migrants from its territory.

Cuban State Media: Obama Visit ‘Disproves Human Rights Violations’ by Communists

Cuba’s communist propaganda newspaper Granma has published an article claiming that President Barack Obama’s scheduled visit to Havana in March “disproves” decades of evidence that the Cuban government violates the human rights of its citizens, on a weekend in which Cuban state police arrested almost 200 dissidents for peaceful marches against communism.

Breitbart: In a column titled “Four Myths Obama’s Trip to Cuba Disproves,” the newspaper cites “Cuba violates human rights” as the top “myth” that President Obama is helping to eradicate by visiting the island. The article calls the fact of Cuba’s rampant human rights violations “the mantra of those who want to justify as a philanthropic crusade the politics of aggression begun in 1959 before the advance of a socialist Revolution in their own backyard.” The fact that Cuba violates international human rights law on a routine basis, the article continues, “permeated realpolitik previous to the December 17, 2014 announcement,” referring to the day President Obama announced a number of concessions to the Raúl Castro regime in exchange for, in Castro’s words, “nothing in return.”

Granma also claims that President Obama’s decision to endorse the legitimacy of the Castro regime with his presence dismantles the allegation that “the ultra-right in Miami, especially legislators of Cuban origin, had totally held hostage the United States’ politics towards Cuba.” Cuban state propaganda often insults ethnic Cuban voters in Miami as “ultra-right” extremists, using terms like “the Miami Mafia” in an attempt to alienate Republican-leaning voters in the region. Cuban-American voters in Miami have also been consistently mocked and derided in American left-wing media, particularly the cable news pundits associated with NBC.

While Granma is open to using President Obama’s visit to promote the lie that the Cuban government does not oppress its dissidents, it continues to condemn the United States for defending human rights internationally. In a separate column published Saturday, the propaganda outlet condemns President Obama for not using executive orders to lift trade bans on Cuba, accusing his inaction of “keeping alive politics of aggression.”

President Obama is expected to meet with dictator Raúl Castro and “other Cuban people” during his visit, though it remains unclear whether he will be present in meetings with Cuban civil society or pro-democracy activists.

Whether any of Cuba’s most prominent dissidents will be out of jail during President Obama’s visit remains to be seen. If this weekend is any indication, there is little hope that the leaders of dissident groups will be allowed to attend events involving the President. Various dissident groups, including the Patriotic Union of Cuba (UNPACU) and the Ladies in White, staged multiple events across the island this weekend. More than 170 dissidents were arrested, including dozens of Ladies in White arrested for attending Sunday Catholic Mass. An estimated 40 Ladies in White are still in custody after their prayer march in Havana.

The silent marches against the Castro regime this week were dedicated to Orlando Zapata Tamayo, a prisoner of conscience who died during a hunger strike in 2010, and the four men killed in 1996 when the Cuban government shot down a plane belonging to the pro-democracy group Brothers to the Rescue, which included one U.S. citizen.

Cuban dissidents have called President Obama’s decision to visit the island “an error” and warn that “these sorts of visits bring a lot of collateral damage” with them. They note that more than 250 pro-democracy activists were arrested in September during Pope Francis’s visit to Havana, including one man who was beaten and arrested in front of Pope Francis for saying the word “freedom” too loudly near the Pontiff. (The Pope denied having seen the event occurring before him.)

According to the NGO People in Need, President Obama’s efforts to warm up to the Castro regime have significantly deteriorated conditions for dissidents on the island. “There has been no substantial improvement in regard to human rights and individual freedoms on the island. … [The Cuban government] has adapted its repressive methods in order to make them invisible to the scrutinizing, judgmental eyes of the international community, but it has not reduced the level of pressure or control over the opposition,” the group said in a report in December.

Is There a Future for Gitmo?

For the Obama administration when it comes to terrorists or enemy combatants, the title of the playbook is ‘Let Some Other Country Handle It’.

Guantánamo parole board OKs release of Osama bin Laden bodyguard

Majid Ahmed at Guantánamo in a photo from his 2008 prison profile provided to McClatchy Newspapers by WikiLeaks.


MiamiHerald: The national security parole board, in just a month, has approved a former Osama bin Laden bodyguard for release to another country as the Pentagon-run panel works on accelerating reviews.

The board has six more hearings scheduled into May — two of them so-called “forever prisoners” like the man whose approval to go was disclosed Friday and four of them who were at one time considered candidates for war-crimes trial.

In the latest decision, the board recommended release of Yemeni Majid Ahmed, 35, to an Arabic-speaking country with security precautions. An intelligence assessment concluded that he was recruited to join the Taliban at age 18 or 19 and became a bin Laden bodyguard at 21, a month before the Sept. 11 terror attacks.

The decision to approve the release of Ahmed means that, of Guantánamo’s 91 captives, 35 are approved for transfer, 10 are in war crimes proceeding and the rest are either forever prisoners or candidates for war crimes trial.

The board said Ahmed “has been relatively compliant during his time at Guantánamo, although he has been largely uncooperative with interrogators.” The intelligence profile said he “still harbors anti-U.S. sentiments and holds conservative Islamic views that may make transfer and reintegration to many countries difficult.”

The board’s three-paragraph statement disclosing Ahmed’s approval for transfer, dated Feb. 18, recommended release to resettlement in an Arabic-speaking country, “with appropriate security assurances.” It was available on the Pentagon’s parole board website Saturday, a month after his Jan. 19 hearing. Full story here.

*** What will a new U.S. president do on the war on terror and will there be an approval for capturing future terrorists?

What to do if U.S. begins capturing more suspected terrorists?

MilitaryTimes: WASHINGTON — President  Obama has refused to send any suspected terrorists captured overseas to the detention center at Guantanamo Bay. But if the U.S. starts seizing more militants in expanded military operations, where will they go, who will hold them and where will they be tried?

Those are questions that worry legal experts, lawmakers and others as U.S. special operations forces deploy in larger numbers to Iraq, Syria and, maybe soon, Libya, with the Islamic State group and affiliated organizations in their sights.

Throughout Obama’s presidency, suspects have been killed in drone strikes or raids, or captured and interrogated, sometimes aboard Navy ships. After that, they are either prosecuted in U.S. courts and military commissions or handed over to other nations.

This policy has been enough, experts say — at least for now.

“If you’re going to be doing counterterrorism operations that bring in detainees, you have to think through what you are going to do with them,” said Phillip Carter, former deputy assistant defense secretary for detainee policy. “If the U.S. is going to conduct large-scale combat operations or large-scale special ops and bring in more detainees, it needs a different solution.”

Rebecca Ingber, an associate law professor at Boston University who follows the issue, warns that if the U.S. engaged in a full ground war in Syria, “chances are there would need to be detention facilities of some kind in the vicinity.”

Obama has not sent a single suspected terrorist to the U.S. military prison at Guantanamo Bay, Cuba, where many have been detained for years without being charged or tried — something the president says is a “recruitment tool” for militant extremists.

He is to report to Congress this month on how he wants to close Guantanamo and possibly transfer some of the remaining detainees to the United States. That report also is supposed to address the question of future detainees.

Sen. Kelly Ayotte, R-N.H., believes that the absence of a long-term detention and interrogation facility for foreign terrorist suspects represents a “major shortcoming in U.S. national security policy.”

Republican candidates who want to succeed Obama are telling voters that they would keep Guantanamo open.

“Law enforcement is about gathering evidence to take someone to trial, and convict them,” said Florida Sen. Marco Rubio. “Anti-terrorism is about finding out information to prevent a future attack so the same tactics do not apply. … But, here’s the bigger problem with all this: We’re not interrogating anybody right now.”

That’s not true, said Frazier Thompson, director of the High-Value Detainee Interrogation Group. The tight-lipped team of interrogators from the FBI, Defense Department, the CIA and other intelligence agencies gleans intelligence from top suspected terrorists in the U.S. and overseas.

“We were created to interrogate high-value terrorists and we are interrogating high-value terrorists,” Thompson said in an interview with The Associated Press.

Since it was established in 2009, that team has been deployed 34 times, Thompson said, adding that other government agencies conduct independent interrogations as well. “We are designed to deploy on the highest-value terrorist. We are not going out to interrogate everybody,” he said.

Thompson would not disclose details of the cases his team has worked or speculate on whether he expects more interrogation requests as the battle against IS heats up.

“If there is a surge, I’m ready to go. If there’s not, I’m still ready to go,” Thompson said.

The U.S. has deployed about 200 new special operations forces to Iraq, and they are preparing to work with the Iraqis to begin going after IS fighters and commanders, “killing or capturing them wherever we find them, along with other key targets,” Defense Secretary Ash Carter said.

Brett McGurk, special presidential envoy for the global coalition to counter IS, told Congress this month that in the final six months of 2015, 90 senior to midlevel leaders were killed, including the IS leader’s key deputies: Haji Mutazz, the top leader in Iraq, and Abu Sayyaf, the IS oil minister and financier.

Sayyaf was killed in a raid to rescue American hostage Kayla Mueller; his wife, known as Umm Sayyaf, was captured.

Her case illustrates how the Obama administration is prosecuting some terrorist suspects in federal courts or military commissions or leaving them in the custody of other nations.

Umm Sayyaf, a 25-year-old Iraqi, is being held in Iraq and facing prosecution by authorities there. She also was charged Feb. 9 in U.S. federal court with holding Mueller and contributing to her death in February 2015.

Ali Soufan, a former FBI agent who investigated and supervised international terrorism cases, including the U.S. Embassy bombings in East Africa and the attack on the USS Cole in Yemen the 1990s, said sending suspected terrorists through the American criminal justice system works. He said the courts are more effective than military commissions used at Guantanamo that have been slow in trying detainees who violate the laws of war.

“The current practice of investigating and prosecuting terror suspects has proved incredibly effective,” Soufan said, noting that since the Sept. 11 attacks in 2001, only seven people have been tried and convicted under military commissions. “During that same time period, hundreds of terrorists have been convicted in federal courts and almost all are still in jail.”

But it’s hard to evaluate the effectiveness of the system.

The Justice Department declined to provide the number of foreign terrorist suspects who have been prosecuted or the number handed over to other countries, or their status. Lawmakers, including Rep. Duncan Hunter, R-Calif., have asked the Defense Department for the numbers.

Reports on how other countries handle the suspects are classified.

Raha Wala, senior counsel at Human Rights First, also is concerned about detention operations abroad.

“The government needs to be more transparent to the American people — and to the world — about who it is transferring overseas, and what procedures are in place to make sure we are not transferring individuals into situations where human rights will be abused,” he said.

U.S. refugee agency put Central American kids at risk

The problem was identified by the GAO in 2012.

Even more terrifying is this report:






U.S. refugee agency put Central American kids at risk, GAO report says

WashingtonPost: The government agency tasked with placing thousands of Central American children into communities while they await immigration court decisions has no system for tracking the children, does not keep complete case files and has allowed contractors to operate with little oversight, according to a report released Monday by the Government Accountability Office.

“Based on the findings in this report, it’s no wonder that we are hearing of children being mistreated or simply falling off the grid once they are turned over to sponsors,” said Sen. Charles E. Grassley (R-Iowa). “The Obama administration isn’t adequately monitoring the grantees or sponsors whom we are entrusting to provide basic care for unaccompanied children.”

Three senators — Grassley, Orrin G. Hatch (R-Utah) and Tom Coburn (R-Okla.) — asked the GAO in October to review policies of the federal Office of Refugee Resettlement. The agency provides shelter for unaccompanied minors fleeing violence in Central America and identifies sponsors to care for them while they await hearings in immigration courts. More than 125,000 unaccompanied minors from Central America have been caught at the U.S.-Mexico border since 2011. The 64-page report is being released one day before the Senate Judiciary Committee is scheduled to hear testimony from Obama administration officials about their handling of the children.

“Their records are incomplete, they are not appropriately checking in on the facilities that house the children, and they don’t even have a dedicated system to follow up on the children once they’ve been placed with sponsors,” Grassley said.

The Office of Refugee Resettlement, a division of the Department of Health and Human Services, has come under criticism in recent weeks for its handling of a number of cases involving unaccompanied minors.

Advocates for unaccompanied minors say that the refu­gee office was overwhelmed by the surge of children crossing the border in 2014 but that the system is a much better alternative than longer detention for vulnerable children.

On Jan. 28, the Senate Permanent Subcommittee on Investigations issued a report focusing on cases in which Central American children were victims of abuse by their sponsors, including one case where the agency released several Guatemalan teenagers to labor traffickers who forced them to work long hours at an Ohio egg farm for as little as $2 a day.

“We agree with the GAO’s recommendations, which is why we’ve already implemented some of them and are in the process of implementing the rest,” said Andrea Helling, a spokeswoman for the Department of Health and Human Services. “This is part of the process of improving the program to care for the children who come into our custody.”

The GAO found that children’s case files were often incomplete, making it difficult for investigators to determine whether they had received proper care such as group counseling and clinical services. Investigators reviewed 27 randomly selected children’s case files. None of them contained all of the required documents.

The report also criticized the agency’s oversight of nonprofit groups that it pays to operate shelters for the children and locate sponsors. In 2014, the agency implemented a new monitoring process, requiring site visits every two years. However, investigators found that the agency didn’t complete the site visits in 2014 and 2015. In 2014, agency staff members visited 12 of 133 sites. By August 2015, they visited 22 of 140 sites.

These monitoring visits revealed several problems at the nonprofit-run shelters. At one site, agency workers discovered that the facility didn’t give children the proper amount of medication, leading them to accidentally overdose.

Helling said the Office of Refugee Resettlement is aware of the issues and has hired additional staff and implemented new policies to ensure that all site visits are completed in fiscal 2016.


Once children are released to sponsors, the agency has no system for tracking their whereabouts, according to the report. Some children, including those who have been identified as trafficking victims, are supposed to receive services such as mental- health care. In fiscal 2014, only 9.5 percent of children released by the agency received these services. The agency has established a call center for children who want to report problems with their sponsors and requires its caseworkers to call all children and sponsors after the children are placed.

Grassley sharply criticized the lack of follow-up for released children.

“Beyond the risks to the children created by these shortcomings, our communities are left to cope with the crime and violence from gang members and other delinquents who are not identified or tracked because of HHS’s haphazard and porous practices,” he said.

Helling said the agency is looking at ways to expand post-release services for children, adding that “the overwhelming majority of these children are fleeing violence and chaos, not looking to create it.”

Sen. Rob Portman (R-Ohio), who co-chaired the Jan. 28 Senate hearing about problems within the agency, said he will testify at Tuesday’s hearing.

“I’m pleased the Judiciary Committee is following up on the subcommittee’s bipartisan investigation,” he said. “The administration must be held accountable for turning young children over to traffickers and criminals.”

Jennifer Podkul, a migrant rights expert at the Women’s Refugee Commission, said: “Overall, we’re incredibly happy that ORR is the agency that’s been designated to release the kids. What happened when there were incredible numbers was that it showed the strain and the weaknesses in the system. It was like a magnifying glass on the system.”