In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1509
EXODUS REFUGEE IMMIGRATION, INC.,
Plaintiff‐Appellee,
v.
MICHAEL R. PENCE, 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.
____________________
ARGUED SEPTEMBER 14, 2016 — DECIDED OCTOBER 3, 2016
____________________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
POSNER, 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 only
No. 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 funds
No. 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 fall
6 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
AFFIRMED.