Suit Alleges That Muslim Ban’s Waiver Process Is A Sham
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In his opinion in Korematsu II, Chief Justice Roberts cited the “waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants” as one of “[t]hree additional features of the entry policy [that] support the Government’s claim of a legitimate national security interest.” It will shock you to know that this waiver program appears to be almost entirely theoretical:
A group of people whose visas have been denied or held in limbo under President Donald Trump’s travel ban is suing the administration in the first lawsuit over the ban since the Supreme Court upheld it in June.
The lawsuit, filed in the Northern District of California under the name Emami v. Nielsen, names Homeland Security Secretary Kirstjen Nielsen, Secretary of State Mike Pompeo, and various government agencies as defendants. It was filed by a group of 36 people — some of them visa applicants themselves, some of them the US citizen or permanent resident family members of visa applicants. Between them, they represent all five of the Muslim-majority countries affected by the current ban. (Vox has uploaded a copy of the complaint in the lawsuit.)
They’re not trying to reopen the question of whether the ban itself is legal or constitutional. Instead, they’re asking the administration to explain how it grants waivers under the ban — and to justify the gap between what the administration portrays as a clear and generous waiver process and overwhelming anecdotal evidence that people who should be considered for waivers are getting flatly denied or held in administrative limbo.
The Trump administration says it makes exceptions to its travel ban (which is in effect indefinitely for most people from five Muslim-majority countries and North Korea) for people in particularly compelling circumstances. It’s a key part of the government’s argument that the ban is a thoughtful policy motivated by national security, rather than a backward-working attempt to satisfy Donald Trump’s campaign-trail promise to shut down Muslim immigration to the US. It’s one of the factors that Chief Justice John Roberts used when ruling for the ban.
But even as the Supreme Court was considering the case, there was substantial evidence that very few people were getting waivers to come to the US — and many more were being rejected.
And while the most recent numbers from the US Department of State indicate that 996 people have been “cleared” for waivers since the ban went fully into effect in December 2017 — and previous stats, from April, indicate that approximately 2 percent of all applicants are cleared — it’s not clear how many of those people have actually gotten their visas, or whether they’ll get visas at all.
Given that you have to be willfully blind to see the ban as motivated by legitimate national security interests, this is not remotely surprising. Some of the framing in Marty Lederman’s post is a little contrarian for my taste, but the meat of the analysis is excellent, especially on this point.