According to the latest reports, the number of State governors seeking to exploit Islamophobia in the wake of the ISIS Paris attacks (which so far not one single refugee has been reliably shown to have had the slightest connection with) by threatening to bar Syrian Muslim refugees from their states has risen from 6 on November 16 to 23 as of this writing, including 22 Republicans and 1 Democrat (in New Hampshire).

This total also includes supposedly "moderate" governors, such as Governor Chris Christie of New Jersey, who did not give details as to exactly how he proposes to bar Muslim refugees from his state. Is he perhaps planning to close the George Washington Bridge?

In terms of numbers, this brings the total close to the 26 state governors, all Republicans, who have joined in the Texas v. US lawsuit that seeks, at least indirectly, to force millions of equally unpopular Latino immigrants and other immigrants of color to "self-deport" by blocking the federal government from granting them affirmative benefits under the DAPA program.

Aside from political questions, including the basic threat to our democracy itself arising from these twin demagogic appeals to the voters' lowest instincts of prejudice against immigrants belonging to unpopular ethnic or religious minorities, which are beyond the scope of this post, there are serious legal issues as to whether the states have the power to interfere with federal government policy concerning either mainly Latino DAPA beneficiaries or mainly Muslim Syrian refugees.

In the case of Texas v. US, as I showed in my November 13 Immigration Daily post, even Republican appointed federal district and circuit court judges with deeply conservative reputations, (and, in the case of District Court Judge Andrew Hanen, an undisputed history of anti-immigrant judicial activism) had serious reservations about the 26 states' claim of having standing to bring the lawsuit on the basis of alleged injury from unauthorized immigration in general.

Instead, the 26 states were able to avoid having their lawsuit thrown out of court only by judicial sleight of hand in using the fact that only one of those states, Texas, was able to show that it would incur a modest amount of extra costs (estimated at a few million dollars, at most) by issuing state-subsidized drivers licenses to DAPA eligible immigrants, as a basis for finding "injury" to them all if DAPA were implemented.

However, in suing for the right to make life more difficult, if not intolerable, for millions of Latino immigrants, the 26 states had at least a valid pretext, a legal fig leaf, for being to seek assistance from the federal courts in carrying out their agenda.

There is no legal basis for asserting any such rights by the 23 state governors who have signed on to anti-Muslim hysteria by promising to defy the federal government's legal authority to settle as many Syrian Muslim refugees as it wants to in any state that it chooses, within the numerical limits allowed by federal law.

The controlling statute regarding refugee resettlement in the United States is the Refugee Act of 1980, which set up the Office of Refugee Resettlement. INA, Section 411 and 412, 8 U.S.C. 1521 and 1522.

Section 412(a)(2)(A) provides:

"The Director and the federal agency administering subsection (b)(1) 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." (Italics added.)

Subsection (a)(2)(B) provides:

"The Director shall develop and implement, in consultation with representatives of representatives of voluntary agencies and State and local governments, policies and strategies for the placement and settlement of refugees within the United States.
(Italics added.)

Granted, the intent of the above and other similar provisions in the statute is not to cut the States out of the decision making process with regard to refugee resettlement, but to give them an important consultative role.

Section 412(a)(2)(D) specifically provides:

"With respect to the location of placement of refugees within a given state, the Federal Agency administering subsection (b)(1) shall, consistent with such policies and strategies and to the maximum extent possible, take into account the recommendations of the State."
(Italics added.)

But the states are not given a veto power over resettlement decisions, as the 23 governors are now claiming. Their role is purely consultative and advisory. Nothing in the statute give the states authority to bar refugees from an entire state.

While the federal government has the power to make grants to the states to implement resettlement, and the states are authorized to submit their own resettlement proposals for federal approval, INA Section 412, Subsection (a)(4)(C) also provides:

"The Director may not delegate to s State or subdivision his authority to review or approve grants or contracts under this chapter or the terms under which such grants or contracts are made."

The clear intent of these provisions are that the final decisions with regard to refugee resettlement are in the hands of the federal government, not the states.

Most fundamental of all, Section 412(a)(5) provides:

"Assistance and services funded under this section shall be provided to refugees without regard to race, religion, nationality, sex or political opinion." (Italics added.)

In their calls to bar Muslim refugees from the US and admit only Christian ones, a number of Republican governors and presidential candidates are not only trashing everything that America stands for, but are proposing to substitute prejudice and hate in place of the law of the United States of America.

Whatever hypothetical danger there might be to America in admitting refugees, who are the most thoroughly vetted and investigated of all immigrants who are allowed into the US according to most experts, is vastly eclipsed by the dangers of allowing popular fear and prejudice to undermine our democracy and supplant the rule of law.
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Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping mainly skilled and professional workers obtain work visas and green cards. Roger believes that immigration law involves not only technical legal rules, important as they are, but also issues of equal justice, fundamental fairness and basic human rights.

His email address is algaselex@gmail.com