The following column by Sirine Shebaya, senior staff attorney at Muslim Advocates, and Jonathan Smith, legal director at Muslim Advocates, ran in The Washington Post on June 26, 2018.
Is the government making empty promises of relief?
The Supreme Court just ruled in favor of President Trump in Trump v. Hawaii, allowing the ban on travel from five predominantly Muslim countries to become permanent. With this decision, the court has chosen to allow a policy based explicitly on anti-Muslim animus to move forward. As a result, millions of people will, for the foreseeable future, have no way of coming to the United States unless they are granted an individual waiver.
And the Trump administration, so far, has shown that it has little interest in granting waivers. We have been working on behalf of people who desperately need to come to the United States, and we’ve found that their waiver requests have almost all been ignored or rejected.
This third iteration of Trump’s ban has temporarily been in effect since Dec. 4. Exceptions from the ban are supposed to be allowed for people who can demonstrate that they would suffer “undue hardship” if denied entry; that their entry would not pose a threat to the national security or public safety of the United States; and that their entry would be in the national interest. The ban itself includes a robust list of circumstances in which a waiver grant may be appropriate. These range from urgent medical needs to previously established significant ties to the United States, such as work or study, to family relationships or significant business or professional obligations that would be impaired. Waivers are common in other immigration law contexts, and all other waiver schemes provide for a clear opportunity to submit applications and an orderly method for their adjudication and appeal.
The government made much of the waiver scheme while defending the ban. The Justice Department argued that the policy is not a true ban because every applicant gets individualized consideration for a waiver. During oral arguments before the Supreme Court in April, the government’s top lawyer asserted that several hundred waivers have been “cleared” for individuals from the banned countries. Outside the courtroom, though, that assertion has never been substantiated.
The government has refused to provide any meaningful guidance on how it makes waiver determinations. It has even failed to provide individuals with a process for submitting documents in support of a waiver request. Recent statements from former consular officials also paint a very different picture than what the government has represented to the courts — of agency mandates that leave them with no discretion to grant waivers and that instruct them to find any reason they can to deny waivers.
“The waiver process is fraud,” one former consular official stated in court documents.
Over the past several months, our team at Muslim Advocates has responded to countless requests for assistance with waivers. We’ve spoken to dozens of immigration lawyers and affected community members about the waiver process. We have submitted requests under the Freedom of Information Act to try to obtain information — so far without success — that could shed light on what has remained an entirely opaque and mysterious process.
Our experience suggests that the vast majority of people who have sought waivers consistent with the parameters and examples provided by the government in court — to rejoin their family, to come here for medical treatment, to be reunited with spouses and fiances, to visit as academics or to accept offers of employment — have been denied or placed on indefinite hold. Firsthand accounts from former consular officials back up this conclusion.
The government has provided no proof that many, if not most, of the 800 individuals the government states have been “cleared” for a waiver have actually been granted visas or been able to come to the United States. (Even if each person cleared for a waiver were to be granted a visa, that would still, according to a recent estimate, amount to no more than 1.5 percent of all visa applicants from the banned countries.)
Among the people we’ve tried to help whose lives have been upended by the ban are an elderly mother living alone in war-torn Syria while her son, a U.S. citizen who runs a small business in Virginia, anxiously awaits word on whether she can rejoin him; a young man in Iran separated from his entire family, which lives in the United States; a couple stuck in Malaysia because the husband is Yemeni and his U.S.-citizen wife does not want to be separated from him while he is banned from entering the United States; and an 80-year-old Iranian man who died while trying to rejoin his U.S.-citizen daughter in the United States after his son died of brain cancer.
All these individuals, and many more, have sought waivers to allow them to come to the United States. But to date, none have received such a waiver, and all remain banned.
The only path to come to the United States from the nations Trump has barred remains shrouded in mystery and largely inaccessible for the millions who are covered by the ban. The waiver scheme has proved to be “window dressing” and a sham, illustrating once more that this ban is just what it was intended to be when Trump first proposed it 2½ years ago: a “total and complete shutdown,” in every sense of the word, of Muslims coming to the United States.
Now that the Supreme Court has weighed in on the merits of the ban, it remains up to our elected officials to step in and roll back this discriminatory and heartless policy. And, in the meantime, we will continue to challenge the administration’s handling of the waiver process.