As we await the U.S. Supreme Court’s imminent ruling in the legal challenge to President Donald Trump’s Muslim Ban, new reporting has highlighted more problems with the ban beyond the obvious that it is unconstitutional because it singles out one religious group for disfavor.
A new report from Slate calls into question the Trump administration’s representations to courts and to the public about the waiver process that is supposed to be available for prospective immigrants from the five predominantly Muslim countries who otherwise are blocked from entering the United States by Trump’s Muslim Ban 3.0.
When he defended the Muslim ban before the Supreme Court on April 25, Solicitor General Noel Francisco claimed obtaining a waiver to enter the U.S. was as straightforward under Trump’s Muslim ban as it has been under previous presidents’ immigration orders. The “waiver process actually is applied automatically by consular officers,” Francisco said. If an immigrant is barred under Trump’s Muslim ban, “then the consular officer, him or herself, turns to the waiver provision and applies the criteria of the waiver provision.”
But two consular officers who were tasked with implementing the Muslim ban’s provisions contradicted Francisco’s claims in Slate’s report. In a sworn statement in a separate lawsuit, one official said consular officers were not allowed to use any discretion to grant visa waivers. “My understanding was no one is to be eligible to apply (for a waiver),” the official said.
Another consular official said “the waiver process is fraud,” according to Slate. Both said the process has been unnecessarily shrouded in secrecy, preventing the public and immigration advocates from knowing how or how often it’s being implemented.
Americans United and our allies have been in court seeking information from the Trump administration about the waiver process and the national security reports that supposedly justify Trump’s Muslim ban. The same day we joined Muslim Advocates and the law firm Covington & Burling in filing Iranian Alliances Across Borders v. Trump (the first lawsuit filed on behalf of individuals and organizations harmed by Muslim Ban 3.0), we also filed Brennan Center for Justice v. U.S. Department of State to compel the Trump administration to release critically important details on how it chose the countries targeted by the ban.
A few days later, AU joined Muslim Advocates and Southern Poverty Law Center as plaintiffs in Muslim Advocates v. Department of Homeland Security, a lawsuit to compel the Trump administration to explain the process and qualification standards for obtaining waivers.
The government’s lack of transparency about the justification for the ban and the availability of waivers for people from banned countries makes it even more difficult to believe the Trump administration was acting on anything other than the president’s well-documented bias against Muslims. And while the court battles drag on, real people are being harmed – including those seeking desperately needed waivers.
Back in March I wrote about a critically ill American who needed a bone marrow transplant from his Iranian brother, who was blocked by Trump’s ban from coming to the United States. U.S. immigration officials denied the brother’s waiver request – until the story drew widespread media attention.
During oral argument in the Trump v. Hawaii Muslim ban challenge, the Supreme Court inquired about the case of Shaema Alomari, the now 11-year-old daughter of an American citizen who was blocked from leaving war-torn Yemen and coming to the U.S. for treatment of her cerebral palsy. After her case was highlighted, she was granted a waiver.
But countless others have been denied visa waivers. Slate reported that in a one-month period at the beginning of the year, two waiver requests out of nearly 10,000 visa applications were granted. By March, Reuters reported that a mere 100 waivers had been granted. In April, the government told the Supreme Court over 400 waivers had been granted. And as of June 15, the State Department claims just over 800 waivers were granted. But compared to the thousands of visa applications the U.S. receives, that means just a fraction of waivers are granted; Slate estimates it at 1.5 percent.
All of this indicates the waiver process is not as “robust” as the government claims. Or in the words of Justice Sonia Sotomayor, “Is this window dressing or not?”
Regardless of what decision the Supreme Court makes this month about the Muslim ban, it’s clear the Trump administration is going to keep doing everything it can to fulfill his campaign promise for a “total and complete shutdown of Muslims entering the United States.” Americans United will continue to fight back against this anti-Muslim bias and protect the rights of religious freedom for all, not just some, Americans. I hope you’ll stand with us.