by Betsy L. Fisher[1]

Introduction

Each year the President issues a Presidential Determination (PD) setting the number of refugees to be admitted to the United States in the upcoming fiscal year,[2] a decision that news coverage has widely discussed in recent years.[3] President Obama, seeking to demonstrate U.S. leadership in the Syrian refugee crisis, sought to resettle at least 10,000 Syrian refugees in Fiscal Year 2016 and established a PD of 110,000 refugees for Fiscal Year 2017—then a twenty-two-year high.[4] In one of President Trump’s first official acts after his inauguration, he ordered the PD for Fiscal Year 2017 to be lowered to 50,000 before issuing consecutive, all-time low refugee PDs of 45,000 for Fiscal Year 2018 and 30,000 for Fiscal Year 2019.[5]

Historically, advocates paid less attention to the process by which the PD for refugee resettlement is set. Congress established this process in the Refugee Act of 1980 and, despite many complaints,[6] Congress has not amended the process since.[7] While the 1980 Refugee Act has advanced legislators’ goals of facilitating longer-term policy making and planning for refugee resettlement,[8] the Act does not provide for refugee resettlement to continue if a PD is not issued prior to the start of a fiscal year. The consequences for an Administration failing to comply with the procedural requirements set out in the Act are borne not by the Administration, but by refugees who are waiting for resettlement.

This article examines those procedural requirements and proposals for legislative reform, proceeding in three parts following this introduction. Part II addresses the anomalous procedural requirements of the United States Refugee Admissions Program (USRAP), whose annual admissions number is set by the President in consultation with Congress. Part III discusses the shortcomings of the current statutory structure, namely the failure to provide for continued resettlement in the absence of a Presidential Determination. Part IV evaluates legislative proposals for reform and the extent to which they would address this shortcoming.

Background Information: Congressional Consultation Requirements in the Presidential Determination Process

Congress has extensive authority over who can be admitted to, removed from, and naturalized in the United States.[9] As a result, Congress sets the numbers of authorized admissions for most immigration programs in advance, allowing either a predetermined number of visas for each category each year, or allowing visa issuances to as many individuals who qualify.[10]

By contrast, the 1980 Refugee Act established the U.S. Refugee Admissions Program and delegated to the President the decision of how many refugees to admit each year.[11] In setting up this structure, legislators sought to establish equality in treatment of various groups of refugees, and to allow an Administration to establish longer-term refugee policy rather than addressing refugee situations on an ad hoc basis.[12] Yet, Congress did not blindly assign the PD to the President without reserving an oversight role for itself:[13] the refugee ceiling for each fiscal year “shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation [with Congress], is justified by humanitarian concerns or is otherwise in the national interest.”[14]

The 1980 Refugee Act sets out a multi-step process for setting the PD and appropriate consultation. First, prior to the start of the fiscal year, the President is to submit information to the House and Senate Judiciary Committees on the number of refugees in need of resettlement, and the President’s “anticipated allocation of refugee admissions.”[15] The Administration is expected to provide a list of information to Congress “[t]o the extent possible . . . at least two weeks in advance of discussions in person by designated representatives of the President with such members.”[16] This information essentially requires the President to provide a rough draft of the PD and an explanation to Congress as to how the President reached this preliminary decision. In practice, administrations have satisfied this requirement by publishing a document called “Proposed Refugee Admissions” for the upcoming fiscal year.[17]

The next step is to hold “appropriate consultations,” defined as “discussions in person by designated Cabinet-level representatives of the President” with House and Senate Judiciary Committee members about the information provided by the Administration and to additionally inform Congress of the global refugee situation, impact of refugee resettlement on the United States, and other information.[18] The statute imposes a “consultation” requirement, not a reporting or briefing requirement, indicating an intent that Judiciary committee members should have the opportunity to state their opinions with the possibility of influencing the final PD rather than just to receive information passively. However, the Act does not describe how the Administration is to receive or weigh input from the Committee members during or after the consultations.[19]

“As soon as possible” after these consultations are initiated, the Judiciary Committee members are to print “the substance” of the consultation in the Congressional Record.[20] Prior to issuing a final determination, Congress is to hold a hearing unless there are safety concerns preventing a public hearing.[21] Only after these steps are followed is the President to finalize the determination. All of these steps are to occur prior to the start of the fiscal year.[22] The Presidential Determination can be increased to allow for greater refugee admissions in the fiscal year if

the President determines, after appropriate consultation, that (1) an unforeseen emergency refugee situation exists, (2) the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and (3) the admission to the United States of these refugees cannot be accomplished under [the Presidential Determination issued prior to the start of the fiscal year].[23]

Legal Analysis: Shortcomings of Current Consultation Requirements

While the 1980 Refugee Act sets out a roadmap for issuing the annual Presidential Determination, the statute’s primary challenge is the lack of means for refugee admissions in a new fiscal year until the President issues a PD. Most of the requirements listed above are mandatory, which is to say that Congress has stated that the President or Administration “shall” carry out these statutes. When an Administration is unwilling to carry out statutory requirements, though, the statute does not specify a means for Congress to force the Administration to comply. The clearest consequence of failing to carry out these procedures is that the U.S. Refugee Admissions Program is unable to admit refugees until the President issues a PD.

Perhaps, since Congress does not have tools to enforce the procedural requirements of the Act, Administrations regularly ignore the procedural requirements in several respects. The statute is clear that the Presidential Determination “shall” be set prior to the start of the fiscal year; in several years, though, the PD was issued after the start of the fiscal year.[24] A hearing is required, but no such hearing was held any time in Fiscal Year 2018. The statute is unambiguous that consultations should be “in person” and with Cabinet-level representatives of the President. The consultations for Fiscal Year 2019 were held over video-teleconference.[25] Congress clearly intended that consultations provide an opportunity for Congress to provide meaningful input; members of Congress have complained in recent years that the consultations are pro forma “discussions” held only after a final decision is made.[26] The content of the consultations are to be published in the Congressional Record, but, perhaps because they are not public proceedings, the consultations have not been published in the Congressional Record for several years.

These issues came to a head in the consultation processes for Fiscal Years 2018 and 2019, both of which elicited strong responses from Judiciary Committee members. In August 2018, after expressing frustration with the Fiscal Year 2018 process, the Senate Judiciary Chairman and Ranking Member wrote to administration officials to begin the process of scheduling consultations.[27] Still, the Fiscal Year 2019 consultations process started only after Secretary of State Mike Pompeo had already announced number of refugees to be resettled, forcing a State Department spokesperson to clarify that Congress would, in fact, be consulted before the PD was finalized.[28] Those consultations were held over video-teleconferencing and after the start of the fiscal year.[29]

Nearly four decades after the enactment of the 1980 Refugee Act, Congress should amend the Act to address a situation in which the President does not follow statutory requirements for congressional consultation and does not issue a PD prior to the start of a fiscal year. Several bills since 1980 have proposed amendments to the process. None of the bills have been enacted; two would address this statutory shortcoming, and one presents a viable legislative solution.

The Refugee Resettlement Extension Act of 1988[30] would have required the initial report’s submission to Congress no later than June 1st.[31] The House and Senate Judiciary Committees, rather than the President, would then be responsible for moving forward with the remaining steps in the consultations process.[32] This would do little to remedy the situation of the last two years in which the President has simply delayed consultations and held only superficial consultations. It also does not state what should happen in the absence of a Presidential Determination at the beginning of the fiscal year.

The Refugee Program Integrity Restoration Act of 2016 would limit Presidential authority by setting a default Presidential Determination of 60,000—significantly lower than the historical average—and requires congressional approval for a Presidential Determination to be set above this level.[33] This bill would limit the need for consultations and allow for admissions without a Presidential Determination. However, its cap of 60,000 is artificially low, particularly when compared with historical averages,[34] and indeed, other provisions of the bill show that the legislation is clearly intended to limit refugee resettlement rather than to improve the resettlement process.[35]

The Refugee Protection Act of 2016 would have adjusted the consultation process by allowing refugee admissions to continue if the President did not issue a Presidential Determination.[36] It would also require the President to initiate consultations by May 30 of the preceding fiscal year.[37] By requiring consultations to begin earlier, it would have increased the likelihood that consultations would be held and that the PD would be issued prior to the beginning of the fiscal year. It thus would have strengthened the arrangement of congressional and executive collaboration without fundamentally reallocating authority. Crucially, it would have allowed refugee resettlement to continue without a PD and without arbitrarily curbing refugee resettlement as the Refugee Program Integrity Restoration Act would do. The Refugee Protection Act’s PD provisions have one primary weakness: they peg ongoing arrivals in the absence of a PD to the previous year’s PD. The PD has varied from 110,000 to 30,000 in the span of the last three fiscal years, demonstrating the wisdom of pegging refugee admissions without a PD to a broader historical average. Nonetheless, the Refugee Protection Act provides the strongest of the three legislative proposals.

Conclusion

The Refugee Act of 1980 has been a remarkable success, but its procedural requirements have a key flaw: the punishment for an Administration’s noncompliance is inflicted on refugees who are waiting for resettlement­­. Congress should amend the Refugee Act so that refugees can continue to access refugee resettlement if the President fails to issue a Presidential Determination.

[1] Betsy L. Fisher is the Policy Director of the International Refugee Assistance Project (IRAP).

[2] Immigration and Nationality Act (INA) § 207, 8 U.S.C. § 1157 (hereinafter INA).

[3] See, e.g., Victoria Macchi, US Sets Refugee Admissions at Historic Low, Voice of America (Oct. 4, 2018), https://www.voanews.com/a/us-sets-refugee-admissions-at-historic-low/4600218.html; Julie Hirschfield Davis, White House Weighs Another Reduction in Refugees Admitted to U.S., N.Y. Times (Aug. 1, 2018), https://www.nytimes.com/2018/08/01/us/politics/trump-refugees-reduction.html; Conor Finegan, Trump Administration Planning to Cap Refugees at 45,000 for Next Fiscal Year, ABC News (Sept. 27, 2017), https://abcnews.go.com/Politics/trump-admin-capping-refugees-45000-fy18/story?id=50140408; Maya Rhodan, President Obama: U.S. Will Accept 110,000 Refugees from Around the World, Time (Sept. 20, 2016), http://time.com/4501924/barack-obama-refugee-increase-united-nations/ (each discussing the refugee ceiling as determined by the President).

[4] Migration Policy Institute, U.S. Annual Refugee Resettlement Ceilings and Number of Refugees Admitted, 1980-Present, https://www.migrationpolicy.org/programs/data-hub/charts/us-annual-refugee-resettlement-ceilings-and-number-refugees-admitted-united.

[5] Julie Hirschfield Davis, Trump to Cap Refugees Allowed into U.S. at 30,000, a Record Low, N.Y. Times (Sept. 17, 2018), https://www.nytimes.com/2018/09/17/us/politics/trump-refugees-historic-cuts.html.

[6] House Judiciary Committee, Goodlatte Calls on Trump Administration to Immediately Provide Refugee Consultation (Sept. 20, 2018), https://judiciary.house.gov/press-release/goodlatte-calls-on-trump-administration-to-immediately-provide-refugee-consultation/; Office of Senator Charles Grassley, Grassley, Feinstein: Congress Requires More Thorough Engagement with State Dept. on Refugee Numbers (Sept. 27, 2017), https://www.grassley.senate.gov/news/news-releases/grassley-feinstein-congress-requires-more-thorough-engagement-state-dept-refugee (hereinafter Grassley and Feinstein Statement); Office of Senator Charles Grassley, Grassley Statement on Refugee Consultation with State Department (Sept. 9, 2015), https://www.grassley.senate.gov/news/news-releases/grassley-statement-refugee-consultation-state-department (hereinafter Grassley Statement) (each expressing concerns from Judiciary Committee members about consultations with Congress on refugee admissions).

[7] Pub. L. 96–212, 94 Stat. 102 (1980).

[8] 125 Cong. Rec. S2630-2631 (daily ed. March 13, 1979) (hereinafter Statement of Sen. Ted Kennedy).

[9] Fiallo v. Bell, 430 U.S. 787, 792 (1977) (noting that “over no conceivable subject is the legislative power of Congress more complete than it is over” than over immigration law”) (internal citation omitted).

[10] See, e.g., INA, supra note 2, at § 201 (determining the level of immigration to the United States for most immigrant visa categories).

[11] Id. at § 207(a)(2) (stating that “the number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest.”).

[12] Statement of Sen. Ted Kennedy, supra note 8.

[13] INA, supra note 2 at § 207(d); see also 125 Cong. Rec. H1310–12 (daily ed. March 13, 1979) (statement of Rep. Elizabeth Holtzman); S. Rep. No. 256, 96th Cong. (1979) at 2; 126 Cong. Rec. H4708–21 (daily ed. June 10, 1980) (each supporting the 1980 Refugee Act and noting the congressional consultations requirement).

[14] INA, supra note 2, at § 207(a)(2)-(3).

[15] Id. at § 207(d)(1).

[16] Id. at § 207(e).

[17] See, e.g., U.S. Dep’t of State, U.S. Dep’t of Homeland Security, U.S. Dep’t of Health & Human Services, Proposed Refugee Admissions for Fiscal Year 2018 (Oct. 4, 2017), https://www.state.gov/j/prm/releases/docsforcongress/274613.htm.

[18] INA, supra note 2, at § 207(e).

[19] Id. at § 207(e).

[20] Id. at § 207(d)(2).

[21] Id. at § 207(d)(3).

[22] Id. at § 207(a)(2)-(3).

[23] Id. at § 207(b).

[24] Presidential Memorandum for the Secretary of State (Oct. 4, 2018) (issuing the Presidential Determination for FY 2019 on Oct. 4, 2018); Presidential Determination on FY 2006 Refugee Admissions Numbers and Authorizations of In-Country Refugee Status Pursuant to Sections 207 and 101(a)(42), respectively, of the Immigration and Nationality Act, and Determination Pursuant to Section 2(b)(2) of the Migration and Refugee Assistance Act, as Amended (Nov. 1, 2005), 70 Fed. Reg. 65,825 (issuing the Presidential Determination for FY 2006 on Oct. 24, 2005); Presidential Determination on FY 2002 Refugee Admissions Numbers and Authorizations of In-Country Refugee Status Pursuant to Sections 207 and 101(a)(42), Respectively, of the Immigration and Nationality Act, and Determination Pursuant to Section 2(b)(2) of the Migration and Refugee Assistance Act, as Amended (Dec. 7, 2001), 66 Fed. Reg. 63,487 (issuing the Presidential Determination for FY 2002 on Nov. 21, 2001).

[25] Rebecca Rainey, Politico Morning Shift, Politico (Oct. 2, 2018), https://www.politico.com/newsletters/morning-shift/2018/10/02/unions-wary-new-nafta-358683.

[26] Grassley and Feinstein Statement, supra note 6; Grassley Statement, supra note 6 (each expressing concerns from Judiciary Committee members about consultations with Congress on refugee admissions).

[27] Office of Senator Dianne Feinstein, Feinstein, Grassley Push for Meaningful Refugee Consultation with Administration (Aug. 8, 2018), https://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=9F32953A-CB90-4B6F-A8AF-F08AC900DEDD.

[28] Reuters, Trump will Consult with Congress on Refugee Cap: State Department (Sept. 18, 2018),

https://www.reuters.com/article/us-usa-immigration-pompeo/trump-will-consult-with-congress-on-refugee-cap-state-department-idUSKCN1LY2W7.

[29] Id.

[30] Refugee Resettlement Extension Act of 1988, S. 2605, 100th Cong. § 4 (1988).

[31] Id. at § 4(a).

[32] Id. at § 4(b).

[33] Refugee Program Integrity Restoration Act of 2016, H.R. 4731, 114th Cong. § 2 (2016) (amending INA § 207 to read “the President may submit to Congress a recommended number of refugees”.).

[34] Migration Policy Institute, supra note 4.

[35] See, e.g., Refugee Program Integrity Restoration Act of 2016, supra note 33, at § 9 (prohibiting resettlement in a state or locality if state or local officials have taken action officially disapproving of resettlement); id. at § 13 (limiting refugee status for individuals who were not specifically targeted); see also Niskanen Center, Statement for the Record of the Niskanen Center Submitted to The House Committee on the Judiciary Legislative Markup on “Refugee Program Integrity Restoration Act of 2016” (March 16, 2016), (noting that the bill’s “provisions reduce the number of refugees who may enter the United States”).

[36] Refugee Protection Act of 2016, S. 3241, 114th Cong. § 21 (2016).

[37] Id. at § 21(3)(B)(ii).