Israel's Chief Rabbi Proposes Special Court To Aid Ukrainian Refugees In Proving Religious Status

Jewish Press and Israel Hayom yesterday reported that Israel's Chief Ashkenazi Rabbi David Lau in a letter to Israel's attorney general has proposed setting up a special religious court (Beit Din) to assist the expected 30,000 or more refugees from Ukraine in proving their Jewish status, thus entitling them to Israeli citizenship under the Law of Return.  The refugees are now entering the country with tourist visas.  Lau pointed out that many Ukrainians fled their homes without documentation of their religious status. Lau plans to appoint three retired religious court judges with experience in this area to the special Beit Din.

Product Liability/ Negligence Suit Against Facebook Seeks $150B On Behalf Of Rohingya Refugees

An unusual class action lawsuit was filed this week against Facebook in a California state trial court on behalf of all Rohingya refugees in the United States who left Myanmar on or after June 1, 2012. It asks for $150 billion in damages for knowingly fueling anti-Rohingya sentiment that enabled the military government of Burma (Myanmar) to engage in ethnic cleansing campaign against the Rohingya. The complaint (full text) in Jane Doe v. Meta Platforms, Inc., (CA Super. Ct., filed 12/6/2021), sets out product liability and negligence claims against Facebook, saying in part:

168. The design of Facebook’s algorithms and product resulted in the proliferation and intensification of hate speech, misinformation, and conspiracy theories attacking the Rohingya in Burma, radicalizing users, causing injury to Plaintiff and the Class, as described above. Accordingly, through the design of its algorithms and product, Facebook (1) contributed to the development and creation of such hate speech and misinformation and (2) radicalized users, causing them to tolerate, support, and even participate in the persecution of and ethnic violence against Plaintiff and the Class.

169. Because (1) the persecution of the Rohingya by the military government was widely known before Facebook launched its product in Burma and (2) Facebook was repeatedly warned after the launch that hate speech and misinformation on the system was likely to result in ethnic violence, Facebook knew and had reason to expect that the Myanmar military and non-Rohingya civilians would engage in violence and commit atrocities against Plaintiff and the Class.

According to the Rohingya Facebook Claim Website, lawyers plan to file a similar suit in the United Kingdom on behalf of Rohingya living elsewhere than the United States. A Letter of Notice has been sent to Facebook. CNN reports on the lawsuits.

LGBTQ Discrimination In Placing Unaccompanied Minor Refugees Is Challenged

Suit was filed earlier this week in federal district court for the District of Columbia challenging the Office of Refugee Resettlement's contracting with religiously-sponsored agencies (including the USCCB) that discriminate on the basis of sexual orientation in providing foster parents for unaccompanied minor refugees. The complaint (full text) in Easter v. U.S. Department of Health and Human Services, (D DC, filed 10/13/2021), alleges in part:

Some ... organizations ... provide taxpayer-funded foster placement services on the federal government’s behalf in a discriminatory manner that categorically excludes lesbian, gay, and bisexual people from participating as prospective foster parents. They contend that the organizations’ religious beliefs justify denying lesbian, gay, and bisexual people from participating equally in the government program that the agencies receive taxpayer funds to administer....

The United States Constitution constrains the government by requiring freedom without favor and equality without exception in performing its functions. And what the government cannot do directly, it may not do indirectly.

Americans United issued a press release announcing the filing of the lawsuit. 

Sanctuary Leaders Sue Over Targeting and Excessive Fines

Suit was filed last month in D.C. federal district court by advocacy groups and individuals who are leaders in the sanctuary movement claiming that ICE and the Department of Homeland Security have targeted the individual defendants with exorbitant fines because they have taken sanctuary in houses of worship. The complaint (full text) in Austin Sanctuary Network v. Gaynor, (D DC, filed 1/19/2021), alleges that these actions violate the 1st and 8th Amendments as well as RFRA. The complaint alleges in part:

The sanctuary movement reignited in the 2000s through a network of over 800 Christian, Jewish, Muslim, Hindu, Sikh, Baha’i, and Buddhist houses of worship that opened their doors to immigrants at risk of deportation, amidst a steady rise in anti-immigrant rhetoric and the criminalization, detention, and deportation of immigrants....

Individual Plaintiffs’ religious beliefs are deeply intertwined with the sanctuary movement. For them, taking sanctuary and participating in the sanctuary movement are religious acts....

Center for Constitutional Rights issued a press release announcing the filing of the lawsuit.

President Sets Refugee Numbers for FY 2021 With Emphasis On Persecuted Minority Religions

In a Memorandum (full text) issued on Oct. 27, President Trump set the number of refugees to be admitted to the United States in FY 2021 (July 1, 2020 to June 30, 2021) as 15,000.  Of this number, 6,000 are unused spaces from FY 2020 that were not used because of the COVID-19 crisis.  The Presidential Determination set out in the Memorandum places particular emphasis on refugees who are the subject of religious persecution. 

5,000 of the spots are designated for refugees who have been persecuted or have a well-founded fear of persecution on account of religion, or who are admissible under the Lautenberg and Specter Amendments. Those amendments cover, among others, religious minorities in Iran.

4,000 of the spots are designated for refugees covered by the Refugee Crisis in Iraq Act of 2007 (12 Stat. 395). This includes Iraqis who were employed by the United States and Iraqis who are members of a persecuted religious or minority community.

5,000 of the spots are designated for others admitted under the United States Refugee Admissions Program.

The President's Memorandum also provides:

Additionally, I specify that persons from certain high-risk areas of terrorist presence or control, including Somalia, Syria, and Yemen, shall not be admitted as refugees, except those refugees of special humanitarian concern:  (1) who have been persecuted or have a well-founded fear of persecution on account of religion; ... [and certain other exceptions].

Catholic Agency Charges County With Retaliation

Suit was filed in a Michigan federal district court last week by St. Vincent Catholic Charities of Ingham County, Michigan challenging the county's refusal to renew a grant for services to refugees,  The complaint (full text) in St. Vincent Catholic Charities v. Ingham County Board of Commissioners, (WD MI, filed 12/16/2019) contends that the county's action was in retaliation for a lawsuit by St Vincent's challenging a state requirement that Catholic adoption and foster care agencies place children with same-sex couples, (See prior posting.)  The current lawsuit claims that the county's action amounts to unconstitutional retaliation, and violates its free speech and free exercise rights. Detroit News reports on the lawsuit.

11th Circuit: Board of Immigration Appeals Failed to Consider Evidence of Ahmadi Persecution In Pakistan

In Ali v. U.S. Attorney General, (11th Cir., Aug. 5, 2019), the U.S. 11th Circuit Court of Appeals vacated and remanded for further consideration a decision of the Board of Immigration Appeals (BIA) denying asylum, withholding of removal and Convention Against Torture claims by a Pakistani immigrant who practices Ahmadiyya Islam. The Appeals court concluded that the BIA ignored numerous de jure and de facto elements of harassment and abuse of Ahmadis that might lead to a conclusion of religious persecution.  The court said in part:

[T]he Board wields wide discretion on how to proceed on remand, and we today express no opinion on the merits. We simply hold that the Board’s decision, read alongside the record, considered alongside our religious persecution cases, is so puzzling that we cannot be sure the Board afforded Ali the consideration of his claims that the law requires. 

Lesbian Couple Has Standing To Challenge Grants To Catholic Foster Care Agency

In Marouf v. Azar, (D DC, June 12, 2019), the U.S. District Court for the District of Columbia held that a lesbian couple (as well as an organizational plaintiff) lack taxpayer standing to challenge federal grants to a Catholic non-profit organization which refuses to place unaccompanied refugee children for foster care with same-sex couples.  However, the court held that the couple does have individual standing to pursue their Establishment Clause, Equal Protection and Due Process challenges to the grants.  The court said in part:

According to the Federal Defendants, a federal agency cannot be held to account for a grantee’s known exclusion of persons from a federally funded program on a prohibited ground. That is an astonishing outcome. Surely, the government would not take this position if, say, Plaintiffs here were excluded from fostering a child based on their gender (both are women), national origin (Marouf is the daughter of Egyptian and Turkish immigrants), or religious faith (Marouf was raised a Muslim, Esplin a Mormon). Yet, despite conceding that there is no agency policy that prevents child placement with same sex couples ..., the Federal Defendants in this case wish to avoid the responsibility that comes with being good stewards of federal funds. They cannot do so.

9th Circuit: Sikh Asylum Applicant Did Not Show Past Persecution

To qualify for asylum as a refugee, an individual must show either past persecution or a well-founded fear of future persecution. (8 CFR 1208.13). In Singh v. Barr, (9th Cir., March 25, 2019), the U.S. 9th Circuit Court of Appeals held in a 2-1 decision that a citizen of India had shown neither. Amaneep Singh, a Sikh, approached members of the Dera Sacha Sauda at one of their recruitment meetings to stop them from criticizing Sikhism. He was chased out of the event. Two months later Dera Sacha Sauda members encountered Singh alone and beat him.  When Singh approached police, they demanded a 25,000 rupee bribe to help him. the majority concluded:

Because Singh’s evidence showed only that the police demanded a bribe on one occasion, the evidence does not compel a finding that the government was unable or unwilling to control the people who attacked him, and therefore does not compel a finding of past persecution....

Singh’s attackers were part of Dera Sacha Sauda, a small religious minority active in only some regions of India. There is no reason to think that Singh is at future risk from a group with such limited influence because he is a Sikh.

Judge Watford dissented saying in part:

Members of another religious faith told Singh to abandon his religion and join their own. When he refused to disavow his faith, they beat him until he was unconscious, hospitalizing him for two weeks. When he went to the police for help, they refused to help him unless he paid a bribe, which was more than he could afford to pay. The majority errs by concluding that these facts do not establish past persecution.

San Francisco Chronicle reports on the decision.

A Few Iranian Christian Refugees Admitted To U.S.; Many Others Await Visas

NBC News reports that U.S. authorities have recently allowed about a dozen Armenian Christian refugees from Iran admission under the Lautenberg-Specter law that provides for visas for persecuted religious minorities from the former Soviet Union and Iran.  The refugees were admitted after a federal judge last July ordered the Department of Homeland Security to provide the reasons for denial of applications from 87 Iranian refugees waiting in Vienna for their visas to be processed. (See prior posting.) NBC reports in part:

Under Trump, the Lautenberg-Specter program has virtually ground to a halt for Iranians. The program includes what used to be a short processing stay in Vienna, but more than 70 Iranian applicants, mostly Christians, have been stuck in Austria for more than two years, their lawyers said. In the past, applicants would be granted U.S. visas after a period of few months in Austria, according to the lawyers and former U.S. officials.

Applicants in Ukraine and other former Soviet states have been admitted without major delays, humanitarian groups said....

 "The increased denial rate was not due to the president’s executive orders but to changes in vetting implemented in 2016," the [State Department] spokesperson said in an email, adding that new applications were still being accepted....

The number of Christian refugees admitted to the United States declined by about 36 percent in fiscal year 2018 compared to the previous year.... The drop is part of a broader decline in overall refugee admissions.

Court Bars Enforcement of Trump's Limitation on Asylum Seekers

In East Bay Sanctuary Covenant v. Trump, (ND CA, Nov. 19, 2018), a California federal district court issued a temporary restraining order against implementation of a Presidential Proclamation and implementing rule that allow asylum to be granted only to refugees who cross the border at a designated port of entry.  8 USC Sec. 1158(a) provides:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival ...), irrespective of such alien’s status, may apply for asylum....

Focusing on this section and on treaty obligations, the court said in part:

The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.

A hearing on whether a preliminary injunction should issue in the case was set for Dec. 19.  Washington Post reports on the decision. The decision led to an unusual war of words between President Trump and Chief Justice John Roberts.

Dramatic Slowdown In Approval of Refugee Status For Iranian Christians

Yesterday's Los Angeles Times reports on the massive slowdown in U.S. approvals of refugee status for Iranian Christians and other Iranian religious minorities (such as Mandaeans) who are applying under the Lautenberg-Specter program. The slowdown began in late 2016. In the first quarter of fiscal 2018, only 29 Iranians were admitted under the program, compared to 1,061 in the first quarter of 2017.  Under the program, refugees with a U.S. sponsor travel to Vienna where they typically have encountered only a 3 to 6 month wait. the State Department says the slowdown stems from enhanced security check procedures apparently instituted under the Obama administration.  In July in Doe v. Nielsen, (ND CA, July 10, 2018), a California federal district court ordered the Department of Homeland Security to provide the reasons for denial of their applications to 87 Iranian refugees in Austria.

Iranian Christians Denied Refugee Status Sue

A class action lawsuit was filed last week on behalf of 87 Christians, Mandaeans, and other persecuted religious minorities from Iran who (through family members in the United States) have applied for refugee status under the Vienna-based Lautenberg-Specter program. The refugee applicants are currently in Vienna. In February 2018 their refugee applications were denied en masse "as a matter of discretion."  The complaint (full text) in Doe v. Nielsen, (ND CA, filed 4/18/2018), contends that:

Defendants’ conduct violates the Administrative Procedure Act because the program changes that resulted in the mass denials constitute final agency actions that were unlawful, including because they were “arbitrary, capricious, an abuse of discretion, or not in accordance with law.”

The Lautenberg Amendment, originally enacted in 1989, made it easier for Jews and Christians from the former Soviet Union to gain admission to the United States as refugees.  In 2004, Congress enacted the Specter Amendment which  added Iranian religious minorities to those eligible for special protection under the Lautenberg Amendment. Since 2004, some 30,000 Iranian religious minorities have been resettled in the United States. Christian Post reports on the lawsuit.

USCIRF Criticizes Treatment of Iranian Christians Seeking US Asylum

The U.S. Commission on International Religious Freedom issued a press release last week calling attention to some 100 Iranian Christians who have been waiting in Vienna for over a year seeking  asylum in the United States under the special provisions of the Lautenberg Amendment.  That law gives higher priority for refugee status to Iranian religious minorities, including Christians, Zoroastrians and Baha’is. USCIRF says that recent reports indicate these individuals have been denied asylum and could be returned to Iran where they may face discrimination or persecution.

Suit Challenges Ban On Lesbian Foster Parents In Federally Funded Refugee Program

A lawsuit was filed yesterday against the federal government and the U.S. Conference of Catholic Bishops challenging discrimination against same-sex couples in administration of the Unaccompanied Refugee Minor Program and the Unaccompanied Alien Children Program. The complaint (full text) in Marouf v. Azar, (D DC, filed 2/20/2018), alleges that various federal agencies use taxpayer funds to finance grants to the USCCB to implement these programs based on impermissible religious criteria.  Plaintiffs, a lesbian couple, were told by Catholic Charities of Fort Worth, a sub-grantee of USCCB, that they did not qualify to become foster parents of an unaccompanied refugee child. An official of the organization told them that foster parents must "mirror the holy family."  The complaint alleges in part:

By working to ensure that none of the children for which they are responsible are placed in homes of same-sex spouses based on USCCB’s religious beliefs, USCCB and its sub-grantees not only discriminate against same-sex spouses, but also effectively erase the non-Catholic identities and beliefs of many of the unaccompanied refugee children for which they are responsible. This conduct potentially increases those children’s alienation and vulnerability, while denying them access to loving homes that could serve them best—all at federal taxpayers’ expense.

Lambda Legal issued a press release announcing the filing of the lawsuit. Washington Post reports on the filing of the suit.

Selective Suspension of Refugee Admissions Is Enjoined

In October, President Trump issued an Executive Order resuming the admission of refugees to the United States, but with increased vetting. (See prior posting.)  A follow-up Agency Memorandum (Fact Sheet) implemented the Executive Order by suspending indefinitely entry of most "follow to join" refugees (i.e. relatives of refugees already resettled in the United States), and suspending for at least 90-days entry of refugees from 11 specified countries.  In Doe v. Trump,  (WD WA, Dec. 23, 2017), a Washington federal district court concluded that the federal agencies involved should have engaged in rulemaking procedures under the Administrative Procedure Act before imposing these restrictions. It also concluded that the suspensions violated various provisions of the Immigration and Nationality Act. the court issued a nationwide preliminary injunction barring enforcement of these restrictions as to any refugee with a bona fide relationship to a person or entity within the United States.  All follow-to-join refugees have such a relationship. Politico reports on the decision.

New Suit Challenges Latest Limits on Refugees From 11 Countries

A lawsuit was filed yesterday in a Washington federal district court challenging the Oct. 24 Executive Order that resumes the admission of refugees to the United States, but with increased vetting of those from 11 countries. (See prior posting.)  The 44-page complaint (full text) in Jewish family Services of Seattle v. Trump, (WD WA, filed 11/13/2017) contends:

Refugee Ban 3.0 implements defendant Donald Trump’s and his Administration’s often repeated goal of banning Muslim refugees from the country. Of all Muslim refugees resettled in the United States in the last two fiscal years, 80% were from the nine Muslim majority countries whose nationals are subject to this most recent suspension.

HIAS issued a press release announcing the filing of the lawsuit.

Supreme Court Dismisses As Moot Remaining Travel Ban Challenge On Its Docket

Yesterday, as President Trump's prior Executive Order barring admission of refugees expired and a new Executive Order took effect, the U.S. Supreme Court issued an order (full text) in Trump v. Hawaii in which it had previously granted review to decide on the constitutionality of the President's second travel ban.  In the order the Court vacated the judgment below and remanded to the 9th Circuit with instructions to dismiss as moot the challenge to the prior Executive Order.  Justice Sotomayor dissented from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted. The Court earlier dismissed another challenge on similar grounds. (See prior posting.)

New Executive Order Restarts Refugee Admissions With Increased Vetting

President Trump today issued an Executive Order (full text) resuming the admission of refugees to the United States, but with increased vetting.  The Executive Order provides rather cryptically for a 90-day review period to determine "whether any actions taken to address the risks to the security and welfare of the United States presented by permitting any category of refugees to enter this country should be modified or terminated..."  Politico reports on the meaning of this provision as provided by administration officials:

The order initiates a new 90-day review period for the administration to conduct an “in-depth threat assessment” of the 11 countries, according to a senior administration official.

The administration did not disclose the 11 countries, but based on statements from senior administration officials they appear to be: Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria and Yemen. All except for North Korea are majority-Muslim.

During the 90-day review period, refugee admissions from the 11 nations will be permitted on a case-by-case basis if the person’s entry is in the national interest and “poses no threat to the security or welfare of the United States,” the official said.

U.S. Will Announce New Vetting Rules That Will Allow Refugees From All Countries To Enter

USA Today, quoting the Wall Street Journal [subscription required], reports that the White House today will announce a new vetting process that will allow refugees from all countries to enter the U.S. again. President Trump's controversial travel ban, as it applies to refugees, expires today.