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By Michael Price, J.D. / 03.08.2018
Senior Counsel, Liberty and National Security Program
Brennan Center for Justice
As legal battles over the Muslim ban make their way up to the Supreme Court, reports from U.S. embassies are casting doubt on a central legal defense to the ban’s constitutionality: individualized waivers. There were 8,406 visa applications from countries subject to the ban as of February 15th. Only two applicants were granted waivers. That’s a success rate of 0.02 percent. While the State Department is now reporting that a hundred waivers have been granted, the success rate is still minuscule. Such a high rate of refusal shows the futility of the waiver process and only confirms the Fourth Circuit’s recent finding that the ban was motivated by religious animosity, not national security.
The current iteration of President Trump’s Muslim ban indefinitely prohibits the citizens of six Muslim-majority countries — Chad, Iran, Libya, Somalia, Syria, and Yemen — from entering the United States. The government has repeatedly touted the plan’s supposedly individualized, case-by-case waiver process in defending its constitutionality. But the numbers above, along with other recent reports, suggest that the process is not meaningfully available, leading to mass visa denials for hopeful would-be immigrants and visitors who appear to have ample good reason for coming to the United States under the terms of the waiver program.
Samerah Alawdi and three of her children were among those denied a waiver this past December in Djibouti. Samerah’s husband is an American citizen, and she has four children born in Michigan. It is difficult to think of a more suitable candidate for a waiver – the Trump administration specifically identifies children and those with family in the United States as appropriate waiver recipients. But the Alawdi family did not receive a waiver, and they are not alone. There have been reports of an American father unable bring his 10-year-old daughter to the United States for critical medical care; of an American son unable to reunite with his Iranian father, a celebrated academic suffering from various medical conditions; and of an Iranian mother unable to visit her son working as a researcher for the National Institutes of Health. There are thousands being denied access to the United States through a waiver program that the government contends is evidence that their Muslim ban is not discriminatory.
The current ban offers the prospect of waivers to those who would face “undue hardship” if denied entry, who present no national security threat, and those whose entry would be in the “national interest.” But the executive order behind the ban does not explain the process by which an individual may apply for a waiver, nor does it describe any procedures concerning hearings or appeals for the denial of a waiver. This lack of detail begs the question as to whether these waivers were designed to actually be taken advantage of by travelers to the United States.
Despite the Trump administration’s promise of an individualized process, the New York Times reports that hundreds of Yemeni nationals have had their applications summarily denied, including those who were previously told that their visas were approved. The notices did not include explanations, and those who received them were not given the opportunity to prove their eligibility for these waivers. Many were wholly unaware that they might be able to apply for a waiver, and they received denials before they even applied. Young children, prime candidates for a waiver, also received the summary denial notices. Apparently, the notices were generic with no individualized assessment as to the applicant’s eligibility. While there are anecdotal reports of immigration officers telling candidates that they may be eligible for waivers, and of candidates using legal help to submit applications, it does not appear that individualized waiver decisions were ever made for these applicants. Indeed, the only evidence of waivers being granted are the meager statistics provided by the State Department.
If the Yemeni experience is emblematic of a wider practice, as it now appears, then the waiver process may as well not exist. Indeed, similar generic denial letters were issued by U.S. immigration representatives in Armenia, Dubai, Abu Dhabi, and Jordan. Moreover, both Senators Chris Van Hollen (D-Md.) and Jeff Flake (R-Ariz.) have described receiving “reports of the near uniform denial of waivers for visas.” These denial letters and high rejection rates cast doubt on whether the waivers’ primary purpose is to provide an available path of entry, or to blunt the ban’s legal challengers.
The Center for Constitutional Rights has submitted a Freedom of Information Act request, seeking information on the process for adjudicating waivers. Future discovery in ongoing legal challenges to the Muslim ban may also shed much needed light on the waiver procedures and policies, if any, used by the administration.
In the near term, the blanket denials may have an impact on the court battles over the ban’s constitutionality. The waiver process has been central to the government’s legal defense, arguing that it shows the ban is motivated by national security rather than religious animosity. According to the government, “[n]either the [ban’s] text nor its operation evidence an intent to exclude Muslims,” in-part because the ban “provides for case-by-case waivers of the entry restrictions in a variety of circumstance.” The numbers now tell a different story, confirming earlier anecdotal reports.
Strikingly, the government also faults those challenging the ban for not waiting to see if they will be granted a waiver before turning to the courts. The 4th Circuit rejected these arguments. It rightly found that these waivers did not cure any constitutional defect, and that those challenging the ban did not have to wait until they were denied waivers to do so.
These waivers are currently the only means by which individuals otherwise subject to the Muslim ban may enter the United States. But if these waivers only exist on paper, then the Supreme Court may take note.
Originally published by the Brennan Center for Justice under a Creative Commons Attribution-No Derivs-NonCommercial license.