Originally published by VOX
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.
“As we’ve been talking to immigrants and assisting people with the waiver process,” says Sirine Shebaya of Muslim Advocates (one of the public-interest groups representing the plaintiffs in this lawsuit), “we’ve come to realize all the ways in which there is no actual process — and, to the extent there is a process, it’s designed to result in near-universal rejection.”
With the ban on the books for good, the hopes of many would-be immigrants, and many US citizens and permanent residents with family members from affected countries, rely on the possibility of getting a waiver. The new lawsuit raises the question of whether that hope is real — or whether the waiver is just, as Supreme Court Justice Stephen Breyer called it in a dissent from the Court’s opinion, “window dressing.”
In theory: the existence of a “robust” waiver process has been a key legal defense of the travel ban
After Trump’s first two attempts at a travel ban were struck down and radically narrowed, respectively, by the courts, he signed a third ban in September 2017. As it stands now, that ban (after modifications in April) stops all would-be immigrants from Iran, Libya, North Korea, Somalia, Syria, and Yemen from entering the United States, as well as people on various types of temporary visas. (The categories of banned visas vary somewhat by country.)
But the travel ban wasn’t supposed to summarily veto literally all affected applications or stop people from applying to begin with.
Instead, consular officers — the US State Department employees evaluating visa applications at embassies and consulates abroad — were supposed to consider whether applicants met three criteria:
- that they would suffer “undue hardship” if not allowed to come to the United States;
- that letting them come wouldn’t hurt the US’s national security or public safety, and
- that it would be in the “national interest” of the United States to admit them.
If an applicant met all three, the official text of the travel ban said that the consular officer was supposed to grant them a waiver.
The ban listed several hypothetical circumstances in which a waiver “may” be warranted: For example, an applicant who has “significant business or professional obligations” in the US; an applicant trying to visit or move in with a spouse, parent or child who was a US citizen or permanent resident; or an “infant, a young child, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case.”
As the last of those implies, that list wasn’t supposed to be exhaustive — nor was it supposed to mean that everyone in those circumstances would be granted waivers. Instead, the order Trump signed instructed the State Department and the Department of Homeland Security to come up with further guidance about how someone could actually get a waiver.
The existence of a waiver process was one of the factors that led Chief Justice Roberts to conclude that there was a legitimate national security rationale for the travel ban, rather than an intent to discriminate by nationality or religion. But his opinion in Trump v. Hawaii didn’t actually evaluate the question of whether the waiver process was as “robust” as the government claimed. That’s what the lawsuit right now is seeking to answer.
In practice: spouses of US citizens — and parents of young US-citizen children — aren’t being found eligible for waivers
Ismail Alghazali is a 25-year-old US citizen who worked in a Brooklyn bodega and hoped to get his GED so he could become a resident nurse. He met his wife Hend through family friends in Yemen and went to live with her, despite a worsening civil war in the country, while he sponsored her for a visa to immigrate to the US.
The Alghazalis were originally supposed to interview for a visa in August 2017, before the current ban went into effect. (Under the policy in place at the time, Hend, as the wife of a US citizen, would have qualified for a visa by having a “bona fide relationship” to the US.) But the airport in Yemen’s capital of Sana’a had been shut down by the fighting. They weren’t able to leave until December 2017, after 10 hot and claustrophobic days in Sudan.
When Hend finally had her interview in Djibouti in January, she was eight months pregnant — and already suffering from a heart condition. Ismail figured that her health condition would constitute undue hardship, while her marriage to a US citizen would qualify her for a waiver based on “national interest.”
But that didn’t come up in the interview, because the interview “didn’t take more than five minutes,” Ismail Alghazali told Vox last week. They approved the couple’s documents, said everything was in order, then suddenly returned Hend Alghazali’s passport to her with a form that said her visa had been denied under Trump’s proclamation — and that they would not be eligible for a waiver.
Since then, Ismail wrote in a letter to the US government this spring, “I am stuck in Djibouti. I have no income to cover our life expenses in Djibouti. I am borrowing money from friends these day[s], and that will not last for a long time.” His US-citizen sister, who has come to Djibouti because Ismail is her legal guardian, has developed insomnia and a speech disability from the stress. His son was born in February in the back of a cab because Ismail couldn’t find an ambulance or taxi in time.
Alghazani is one of several plaintiffs in the new lawsuit who have been prevented by the ban from living in the US with their spouses and children. Others have tried to bring their parents to visit or live with them and have been thwarted, or been prevented from moving to the US to oversee the businesses they invested in.
Their frustrations raise three key questions about the waiver process. What do the standards — undue hardship, national interest, no harm to security — actually mean? Who’s making the decisions about who qualifies for a waiver? And do the government’s numbers actually reflect the number of people who are being allowed to come to the US, or are they designed to make the process seem more effective than it is?
It seems like the bar to qualify for waivers is much higher in practice than the one Trump set
So far, what we know about the waiver process is anecdotal. That’s part of the purpose of this lawsuit — to get some insight into the process itself rather than guessing from the outside. But one of the things the anecdotes suggest is that the standards to issue waivers are inconsistent, and some of them sound impossibly high to meet.
The evidence has come out in pieces. A Washington Post piece in May profiled several cases that seemed to meet the standards for a waiver but hadn’t been approved, including the case of an 11-year-old with cerebral palsy whose mother is a US citizen. In June, Slate published testimony from consular officers saying they were directed to find any excuse possible to deny a waiver — that the process was a “sham.”
Even the government’s own statements haven’t been consistent. The State Department’s website, for example, says that the standard for “undue hardship” is that being banned from the US indefinitely, which is what the current travel ban does, would cause hardship to the applicant.
But a letter to Sen. Chris Van Hollen (D-MD) from a State Department employee in February says an applicant only demonstrates undue hardship if they need to come to the US immediately and any delay at all would “defeat the purpose of travel.” The second standard wouldn’t apply for Hend Alghazali or any other relative of a US family member; it assumes that bans on all countries will be lifted at some point, which the Trump administration doesn’t promise at all.
A consular officer in Vancouver told a lawyer his client didn’t qualify as an “immediate relative” (one of the circumstances that might make someone waiver-worthy) because he was over the age of 21, inventing a requirement absent from Trump’s proclamation. An officer in Djibouti told another lawyer that even though infants and young children are theoretically deserving of waivers (if they meet the standards), “Even for infants, we would need to see some evidence of a congenital heart defect or another medical issue of that degree of difficulty that likely could not be successfully operated upon in Djibouti and if not treated would likely lead to the child’s developmental harm or death.”
And one of the plaintiffs in the new lawsuit (whose father is a US citizen) was told that he was flatly ineligible for a waiver because he was applying for a diversity visa. That restriction is totally absent from any public waiver guidance, but it’s in line with Trump’s complaints about US immigration policy.
Without clear standards, the lawsuit says, the government’s “practices continue to sow confusion and chaos.”
The government says consular officers are allowed to grant waivers. Consular officers say it’s out of their hands.
According to the text of the travel ban, consular officers are responsible for granting or rejecting waivers. That’s a typical exercise of discretion on the part of officers, who grant or reject visas all the time.
But in this case, it’s not clear what information they have to make that decision. In a lot of cases, the information on someone’s visa application won’t address any “undue hardship” they have. And while the State Department’s website tells applicants to bring up waiver eligibility in their interviews, some plaintiffs in the lawsuit were told they weren’t allowed to present documents to help make their case.
More importantly, though, some consular officers have claimed that the decision isn’t really in their hands at all, prompting the plaintiffs in this suit to allege that the Trump administration has “not given consular officials the discretion to grant any waivers.”
They’re allowed to refuse an application if they don’t think someone qualifies for a waiver. But if they believe that an applicant ought to qualify for a waiver, they’re supposed to formally “reject” the visa application and then refer it to an office in DC for further review. Only after the DC office has approved are they allowed to waive the denial.
That extra step is formally called “administrative processing,” or the issuance of a “security advisory opinion.” It happens in normal visa applications if the consular officer notices a particular red flag. (In other words, the most worthy cases from travel ban affected countries are given the same treatment as the most suspicious ones from other countries.)
In general, the State Department website says administrative processing takes about 60 days, though a State Department official stressed to Vox that “the timing can vary based on the individual circumstances of each case.” The department official also said that, “In some cases, the consular officer may need to request additional documents or other information from the visa applicant,” but many of the plaintiffs in the lawsuit have heard no requests after months of waiting.
It’s not clear whether the DC visa office’s role is simply vetting applications or conducting a completely new review. And they have a lot of leverage to reject them.
The State Department told Vox that they act in “consultation” with local consulates to make sure an applicant meets the national-security standards for a waiver. But the letter to Sen. Van Hollen says that the national security standards for a waiver involve looking at how much information the applicant’s country shares with the US — which is the same standard used to put that country on the travel-ban list to begin with.
The new lawsuit alleges that this all adds up to “a policy or practice of denying or stalling virtually all visa issuance and waiver grants” under the travel ban.
996 people have been “cleared” for waivers. But we don’t know how many have actually gotten visas.
The easiest way to figure out how real the waiver process really is is to look at how often waivers are being issued. But we don’t have a good answer to that.
The first statistics released by the government, a month after the travel ban went fully into effect in early December, showed only two waiver approvals — out of more than 6,000 visa applications. As of early March, Reuters found out the government had approved about 100 more.
In April, though, the government shifted its terms: It stopped releasing stats on waiver approvals and started releasing stats on people “cleared” for waivers instead.
That number has grown pretty steadily. By the Supreme Court oral argument in late April, 440 people had been cleared for waivers; as of July 15, 996 have.
Being “cleared” for a waiver isn’t the same as actually getting a visa; all the government says about the latter category is that “many” people who have been cleared have already gotten their visas. That raises the question of where, exactly, in the process someone gets “cleared,” and whether everyone “cleared” for a visa is going to get one after all.
Asked by Vox whether being cleared for a waiver was the same as approval, a State Department official said it “means that the consular officer has determined the applicants satisfied all criteria and completed all required processing. If the consular officer determines, after consultation with the Visa Office, that an applicant does not pose a threat to national security or public safety and the other two waiver requirements have been met, a visa may be issued with the concurrence of a consular manager.”
As of press time, however, the government had not addressed a specific question about the role that administrative processing, in particular, played in the process — and whether it was the same as the “consultation” that happens before someone is “cleared.” The answer also doesn’t explain why there might be a difference between the number of cleared visas and the number of issued ones.
Raising even more questions about the numbers is the fact that, in at least three cases, the government has “reconsidered” an application after rejecting it — sometimes retroactively.
- Shaema Alomari, the 11-year-old girl with cerebral palsy, was initially denied a visa after her January interview. In April — right before oral arguments on Trump v. Hawaii, a brief that cited her case — her family was contacted and told that she’d been approved and just needed to go through administrative processing. The email included a different version of the form they’d received, with the opposite box checked. She finally received a visa in late May.
- Ismail Alghazali saw in June, right after the Supreme Court decision, that his wife’s case status had changed from “refused” to “administrative processing.”
- Another Yemeni applicant in the lawsuit was emailed around the same time and told that his case was being “reconsidered.”
We don’t know where these cases fit into the numbers the government’s given or why they were reopened or what’s going to happen next. The plaintiffs argue that’s exactly the problem.
This isn’t a lawsuit to kill the ban. It’s an attempt to make the process real.
“When the government holds itself out as providing a process,” Muslim Advocates’ Shebaya told Vox, “it has to follow its own laws.” Those laws include the Administrative Procedure Act, which prevents the government from making “arbitrary and capricious” decisions, and the Fifth Amendment’s guarantee of due process to all people.
The lawsuit argues that the government needs to show the waiver process is real — and that, if it doesn’t, the Northern District of California needs to order it to put a real process in place. The latter would mean publishing clear guidance defining its standards, making it clear how applicants are supposed to demonstrate eligibility, and then reconsidering all visa applications that have been rejected for waivers so far.
“Defendants have a non-discretionary duty to develop guidance on the waiver process and to receive and fully and fairly adjudicate applicants’ requests for waivers,” the lawsuit charges. “Defendants are unlawfully failing to accept waiver applications and to consider Plaintiffs’ requests for waivers under the Proclamation and are thus failing to carry out the adjudicative and administrative functions delegated to them by law with regard to Plaintiffs’ cases.” And therefore, it’s the job of the court to make them.
This is a lot less radical than the previous legal challenges to the ban, which have all attacked the policy itself. And the plaintiffs aren’t even seeking a preliminary injunction to halt the administration’s implementation of the ban while the lawsuit is being considered. Instead, they’re hoping that the judge will allow the lawsuit to proceed so they can demand evidence from the administration about how the waiver process was designed and implemented.
To get there, though, they’ll have to keep the case from getting thrown out of court. The Trump administration is all but guaranteed to argue that decisions made on individual visas aren’t subject to appeal — a well-established principle known as “consular nonreviewability” — and that the government isn’t obligated to be transparent in how it accepts and rejects visas.
But courts have found some holes in consular nonreviewability, especially when the visas in question belong to immediate family of US citizens. And consular nonreviewability hasn’t stopped any of the previous lawsuits against the travel ban from going forward, even when judges ultimately upheld the ban.
If the plaintiffs can get a judge to agree that it’s proper for the judicial branch to ask questions about the waiver process, they’ll already have something of a win. It will then be on the administration to demonstrate that the policy it’s adopted really has all the hallmarks of a careful and deliberate policymaking process. It will, in other words, do exactly what the Supreme Court didn’t do: look at the reality of the travel ban on the ground.