Originally published by Slate
Any day now, the Supreme Court will issue its ruling in Trump v. Hawaii, weighing in on the legality of President Donald Trump’s third travel ban. That ban, which was instituted via executive order in September, prevents nearly all individuals from five majority-Muslim countries and North Korea, and a small number of Venezuelans, from entering the United States unless they receive special waivers. In federal court, government lawyers have pointed to that process of offering “case-by-case” waivers to deserving visa applicants as evidence that the administration’s most recent ban doesn’t suffer from the same constitutional infirmities that caused the first ban to get blocked by numerous judges.
Public reports about seemingly deserving applicants whose waiver requests have been rejected have raised questions about whether the waiver process is as “robust“ as the government has claimed. A Yemeni woman who suffered from rheumatic heart disease was told in December that she’d be allowed into the country to join her U.S. citizen husband only to be denied a waiver once the third travel ban went into effect. A widowed 80-year-old Iranian man whose son had just died of brain cancer was denied a waiver to come live with his U.S. citizen daughter; he never learned that he’d been rejected, as he died three weeks before the denial was issued. A 10-year-old girl with cerebral palsy—the daughter of an American citizen—was initially denied a waiver, and Justice Ruth Bader Ginsburg asked the government about her individual case during oral arguments in Trump v. Hawaii. The girl has reportedly now been allowed into the United States.
In those oral arguments, Justices Stephen Breyer and Sonia Sotomayor asked the government whether the waiver process was mere “window dressing.” Solicitor General Noel Francisco responded that the State Department’s consular officers have been tasked with ensuring the legitimacy of that process. The “waiver process actually is applied automatically by consular officers,” Francisco said. “If you’re not subject to [one of the ban’s other] exception[s], then the consular officer, him or herself, turns to the waiver provision and applies the criteria of the waiver provision.”
In justifying the ban, Francisco described a straightforward waiver process, one reminiscent of the procedures carried out under presidents including Jimmy Carter and Ronald Reagan. But new, previously undisclosed statements from two consular officers tasked with implementing the travel ban’s provisions contradict this depiction. Both say consular officers had no discretion to offer waivers themselves. One described the waiver process as a “fraud.” In the days before the Supreme Court is set to release its ruling in Trump v. Hawaii, these claims raise significant questions regarding the government’s assertions about the travel ban.
Two weeks ago, Christopher Richardson submitted a sworn affidavit in the case of Ahmed Alharbi et al. v. Stephen Miller et al. That case, which is being heard in the United States District Court for the Eastern District of New York, was brought by Yemeni plaintiffs seeking to obtain visas they were approved to receive but were never granted after the latest ban went into effect. (The judge in that case recently issued an injunction demanding the government issue the visas.) Richardson, who most recently worked as the American Citizens Service Chief in Madrid, was a State Department official from 2011 until March of this year, when he resigned. (Disclosure: Richardson and I are acquaintances.)
In his sworn declaration, acquired by Slate, Richardson said that—counter to Francisco’s claim before the Supreme Court—consular officers were not allowed to use any discretion to grant visa waivers.
As a Consular officer previously employed by the State Department my impression and interpretation of how we as officers were to apply the waiver process was as follows:
(a) They gave us a list of things and we would go down the list one by one until we were able to determine at all possible cost that the person was not eligible to even apply for the waiver. My understanding was no one is to be eligible to apply.
(b) If for some reason an applicant made it through the list and we had no choice but to determine we could find an applicant eligible to apply, regardless of the [Presidential Proclamation] instructions that we had “discretion to grant the waiver,” we were not allowed to exercise that discretion. We were mandated to send to Washington that we found this applicant eligible to apply and Washington would then make the decision to grant or deny the waiver.
Richardson’s assertion that consular officers had no discretion to grant waivers directly contradicts both the claim made by Francisco at the Supreme Court and the text of Presidential Proclamation 9645, i.e. the September executive order delineating the third travel ban. That executive order states that “a consular officer, or the Commissioner, United States Customs and Border Protection (CBP), or the Commissioner’s designee, as appropriate, may, in their discretion, grant waivers on a case-by-case basis.”
The claims in Richardson’s affidavit also contradict a letter the State Department sent to Sen. Chris Van Hollen in February. The letter, echoing the language of the presidential proclamation, stated, “The entry restrictions of the Proclamation may be waived if a consular officer determines that the applicant meets each of the following three criteria: (1) denying entry would cause the foreign national undue hardship; (2) entry would not pose a threat to the national security or public safety of the United States; and (3) entry would be in the national interest.” The letter to Van Hollen—the most detailed publicly available guidance on how the waiver process is supposed to work—stated that waiver reviews were to be undertaken by the consular officers themselves (emphasis mine):
First, to satisfy the undue hardship criterion, the applicant must demonstrate to the consular officer’s satisfaction that an unusual situation exists that compels immediate travel by the applicant and that delaying visa issuance and the associated travel plans would defeat the purpose of travel. Second, the applicant’s travel may be considered in the national interest if the applicant demonstrates to the consular officer’s satisfaction that a U.S. person or entity would suffer hardship if the applicant could not travel until after visa restrictions imposed with respect to nationals of that country are lifted.
Per the letter, the third and final criteria, national security, was to be assessed by the consular officer in “consultation with the Visa Office,” with a final determination to come with “the concurrence of a consular manager.” Slate requested comment from the State Department regarding Richardson’s declaration as well as what “consultation with the Visa Office” and “the concurrence of a consular manager” mean in practice. A State Department official replied, “The Department does not comment on litigation.”
In the letter to Van Hollen, the State Department reported that from Dec. 8, 2017, through Jan. 8, 2018, it received 8,406 visa applications from nationals subject to Presidential Proclamation 9645 and approved a total of two waiver requests, meaning that 0.02 percent of applicants received waivers. Since Van Hollen publicized those numbers, the number of waivers issued has ticked up. In March, Reuters reported that the waiver total had reached about 100. At oral arguments in April, Francisco told the Supreme Court that the number of waivers issued was “over 400.” And as of Friday, the State Department says, “at least 809 applicants were cleared for waivers after a consular officer determined the applicants satisfied all criteria and completed all required processing.”
Neal Katyal, in arguing for the plaintiffs at the Supreme Court, noted that the government had not offered an update on the number of visa applications it has received since January. If applications have come in at a similar rate as they did in the proclamation’s first month, the waiver rate would now be at about 1.5 percent. The Washington Post also reported last monththat immigrants’ rights “advocates believe the number of people who actually have received visas through waivers is much lower” than the total number of “accepted” waiver applicants. In other words, there’s no guarantee that applicants who’ve been granted waivers have been issued visas.
In his affidavit, Richardson said consular officers received guidance on how to implement the administration’s executive orders on immigration from “sample Q’s and A’s” distributed by the State Department. Richardson said that “guidance cables, sample Q’s and A’s and instructions regarding executing all three orders were sent via email to consular posts, and the cable and the corresponding Q’s and A’s were at the top center of the [Consular Affairs office’s] internal homepage for 3 to 4 months.” He added, “Having seen all these documents to the best of my recollection NONE of the documents were classified.”
Despite Richardson’s contention that the documents aren’t classified, they haven’t been released for public inspection. In January, Muslim Advocates and the Center for Constitutional Rights issued a FOIA request for any internal government documents pertaining to the waiver process. On Wednesday, the group told me they have yet to receive a response beyond the standard notification of receipt. Julie Goldberg, the attorney representing the plaintiffs in the Alharbi case, said she has also attempted to obtain these documents several times during legal proceedings. “Even the ones that are unclassified, they’re just not turning them over,” she told me. “The best I’ve got is the government has turned it over for in-camera review and the court is yet to release it.”
Richardson said in his sworn statement that these documents would reveal crucial information about how the waiver process does and doesn’t work:
I can certainly understand why the government would not want [to] release all of them because when read together with our training, it is understood that there really is no waiver [process] and the Supreme Court was correct to point out that the waiver [process] is merely “window dressing.”
Another person who has worked as a consular officer during the time frame of Trump’s travel ban affirmed Richardson’s assessment of the waiver process. In communications viewed by Slate between this individual and a longtime immigrants’ rights advocate, the consular officer said “the waiver process is fraud.” (Slate has granted the immigrants’ rights advocate anonymity to protect the consular officer’s identity.)
This second consular officer also said that the “Q&A” document, if revealed to the public, would demonstrate that the waiver process has “no rational basis.” The officer also affirmed Richardson’s contention regarding the State Department guidance to consular officers, saying that “none of the material is classified” and that there’s no reason for the government to withhold the material. “The Q&As have to come out,” the officer added. “Only then will people realize how this is one step away from [the] Soviet politburo.”
If further evidence were to emerge indicating that the waiver process works differently in practice than the administration has claimed, that information could have a serious effect on the legality of the travel ban. In arguments before the 9th U.S. Circuit Court of Appeals, the government asserted that the travel ban writ large was not reviewable under a long-standing legal doctrine known as “consular nonreviewability.” This legal theory, which was affirmed as recently as 2015, gives consular officers broad discretion to reject or approve individual visa applicants without those decisions being subject to judicial review. The 9th Circuit rejected the argument that consular nonreviewability could apply to broad presidential proclamations. It’s possible, though, that the courts could find that decisions to grant or deny individual waivers under the current travel ban—with those decisions purportedly made on a discretionary basis by consular officers—are indeed protected from scrutiny because of the doctrine of consular nonreviewability. If that happens, the administration could claim consular officers are making individualized, discretionary, nonreviewable decisions, while at the same time dictating what precisely each of those “discretionary” decisions should be.
In his affidavit, Richardson said the administration had done just that.
In essence what the administration was doing was “hiding” behind the doctrine of consular non-reviewability for the benefit of issuing a Muslim ban and [at] the same time usurping all of our authority given by both Congress and the [presidential proclamation] by disallowing the consular officer to make a decision.
The second consular officer made a similar assessment.
“[The] government will insist that material is non-reviewable under consular non-reviewability but it’s an intentional Catch 22, just like the waiver process [was] designed,” the consular officer said. The officer added, “They usurped our authority yet make it seem like we still have [authority] to decide.”
The veracity of the government’s claims about the waiver process matters for the purposes of the Supreme Court’s travel-ban case, Trump v. Hawaii. At oral arguments, the government claimed that the existence of the waiver process demonstrated that Trump’s third travel ban was in line with what past presidents had done. Given that, the government argued, the travel ban did not violate either the Establishment Clause or the immigration statute that bars nationality-based discrimination. (Slate sent several questions to the Department of Justice asking about waiver-process protocols and possible inconsistencies between Francisco’s statements to the court and the testimony offered in Richardson’s affidavit. “Because this case is pending, we decline to comment beyond what we argued before the Supreme Court,” DOJ spokesperson Kerri Kupec said.)
These new claims from Richardson and the second consular officer are particularly significant because the key justice in the case seemed particularly taken by the government’s argument that Trump’s executive order is in keeping with past presidential actions. During oral arguments, Justice Anthony Kennedy, who as per usual appears to hold the decisive vote, appeared swayed by the notion that this was just like any other executive order on immigration. “In fact, if you compare this proclamation to the Reagan and the Carter proclamations, which I think were one or two sentences, this is longer than any proclamation that—that I’ve seen in this particular area,” the swing justice said, adding seconds later that it was both longer and more detailed than other such proclamations. “This is the most detailed proclamation ever issued in American history,” Francisco responded.
When Sotomayor noted that this proclamation—which again covers five majority-Muslim countries, North Korea, and a small number of Venezuelans—was much broader than previous ones, Francisco responded by citing the ban’s supposedly typical waiver process. “President Carter’s actually applied to all immigrants but then had an exception much like the waiver provision here for national interests and humanitarian concerns,” Francisco argued. “So I think President Carter’s was actually very similar to the proclamation here.”
The full truth of how the waiver process works remains unknown to all but a small group of government officials. It may ultimately be up to the courts to decide how much the public will be allowed to know about the reality on the ground, and when—if ever—we’re allowed to know it.