Refugee advocates are contemplating litigation after President Trump moved to cut refugee figures to their lowest level in history while favoring admissions for white South Africans.
Trump last week set a cap that would allow the U.S. to admit no more than 7,500 refugees, a 94 percent cut from President Biden’s goal of 125,000.
In doing so, the White House appeared to sidestep Congress, posting the notification on the Federal Register a month after it was signed without consulting with congressional Democrats.
“The statute does not require the president to consult with the members of his own party who are in Congress. The statute requires the president to consult with specific committees in Congress, and that includes members of both parties,” Laurie Ball Cooper, vice president for U.S. legal programs with the International Refugee Assistance Project, said on a call with reporters.
“So that’s one set of legal problems. It’s also hugely problematic that this document sets up a race-based preference system instead of a humanitarian protection system, and so I expect to see a number of challenges to this.”
The figure set by Trump would fall well below the lowest number of refugee admissions attained under his first administration — 11,814, then an all-time low reached at the height of the COVID pandemic.
Trump also directs that “the admissions numbers shall primarily be allocated among Afrikaners from South Africa.”
Critics see the designation as an abandonment of the goals set by the 1980 program, which formalized existing U.S. policies on accepting those displaced due to persecution and danger.
House Democrats said they were never consulted about the major decline in admissions or the shift in focus on who would be granted the protections.
Failure to consult with Congress could spur a challenge, possibly under claims that the administration violated the Administrative Procedures Act (APA).
House Democrats can’t sue on behalf of Congress, but they could make their opinion known by submitting an amicus brief in any litigation.
“Neither Democratic nor Republican leadership on the Judiciary Committees was consulted. So we have a litigation group in the House to deal with the reign of lawlessness that we’re seeing across the government, and we file amicus briefs in a whole bunch of different cases,” said Rep. Jamie Raskin (D-Md.), the top Democrat on the House Judiciary Committee.
“So we’re going to explore all of our options here, knowing that we take very seriously a flawed process, and a flawed process that has produced a completely egregious result in essentially the destruction of the refugee program, except as it relates to the favored white Afrikaners minority from South Africa.”
The low numbers set by the cap are another deviation.
“No president other than Trump has set the ceiling below 60,000 in the 45-year history of the program,” said Erol Kekic, senior vice president of Church World Service, a refugee resettlement group.
The content of the order itself could also be subject to challenge, with refugee advocates arguing it unfairly weighs race rather than the dangerous conditions refugees face in their home countries.
Trump’s reference to Afrikaners said the program should be open to those who face “illegal or unjust discrimination. But that’s different from the existing standard of accepting those who have fled due to conflict, violence, or persecution.
“The wording in the [presidential determination] that references illegal or unjust discrimination that is not the definition of a refugee under U.S. law, or, for that matter, international law,” said John Slocum, executive director of Refugee Council USA.
“It’s certainly not legally sound in terms of its reference to how populations will be selected for this program.”
Trump has repeatedly expressed concern for the white minority group in South Africa, saying they face “hateful rhetoric” and “disproportionate violence.”
Trump signed an order in February encouraging the U.S. to accept Afrikaners as refugees, citing a new law allowing the South African government to seize land for public use. The new law allows the government to do so for citizens of any race, but Trump has nonetheless claimed the law was designed to “seize ethnic minority Afrikaners’ agricultural property without compensation.”
“This Act follows countless government policies designed to dismantle equal opportunity in employment, education, and business, and hateful rhetoric and government actions fueling disproportionate violence against racially disfavored landowners,” Trump wrote in the order.
South Africa is a high-crime country, and its government has denied Trump’s claims surrounding Afrikaners, calling them “completely false.”
South Africa’s ambassador to Washington, Ebrahim Rasool, previously said Trump’s comments were “mobilising a supremacism” and trying to “project white victimhood as a dog whistle.”
The U.S. has already welcomed more than 50 Afrikaners and additional vetting of applicants from there is expected in the coming months.
Raskin said the focus on the group was an abandonment of the program’s goals.
“It’s not the standard traditional language of a well founded fear of persecution and so on. It’s this new standard that seems a little bit customized to address the situation of the Afrikaners,” he said.
“It’s clearly a weakening of the general standard, I think, to somehow justify their exclusive, disproportionate and indefensible focus on Afrikaners. And we need to get back to the idea that we are rescuing people who are facing emergency conditions because of persecution, for racial, ethnic, political, religious, gender based reasons and so on.”
