HIRC files an amicus brief in lawsuit challenging Trump’s new refugee cap

The Harvard Immigration and Refugee Clinical Program (HIRC) filed on Thursday an amicus curiae brief in support of a lawsuit that seeks, among other things, to prevent the Trump administration from lowering the number of refugees that can be allowed into the country.

The lawsuit, filed by the American Civil Liberties Union (ACLU) and the International Refugee Assistance Project (IRAP), challenges President Trump’s January 27 Executive Order, which halved the number of refugees allowed into the country during this fiscal year, from 110,000 to 50,000.

In its brief, HIRC made three distinct arguments.

From left: Jin Kim, JD '18, Sabi Ardalan, Assistant Director, HIRC, and Mana Azarmi, JD '17
From left: Jin Kim, JD ’18, Sabi Ardalan, Assistant Director, HIRC, and Mana Azarmi, JD ’17

First, President Trump’s unilateral restriction on the refugee resettlement program exceeds the authority afforded to him in the Immigration and Nationality Act (INA). That act requires that the President set the number of refugees at the beginning of the fiscal year, and after consultation with Congress. Trump acted alone and changed the number in the middle of the fiscal year.

Congress passed the Refugee Act of 1980 specifically to make what had been an ad hoc admission process more just and humane. Since then, Congress has been a partner in the refugee resettlement program. In acting alone to determine the cap on refugees, the brief argues, Trump has violated the letter of the law.

Second, HIRC notes that while the statute specifically allows for increases to be made in the face of a grave humanitarian crisis, it does not say anything about decreasing the number. The brief argues that if Congress made a concerted effort to include an exception to increase the number of refugees, it surely would have included a provision allowing the President to decrease the number.

Finally, HIRC argues that, because of the rules of statutory interpretation, the President cannot rely on another section of the INA to override this specific statute governing the refugee admissions process. In other words, that statute was passed later, and is specifically tailored to this issue.

This post was written by Mana Arzami, JD ’17