On June 26, 2018, in the case Trump v. Hawaii, the Supreme Court (SCOTUS) upheld President Trump’s Muslim Ban (commonly known as Travel Ban 3.0) by a vote of 5 to 4. The Court’s majority chose not to delve beyond the surface, taking what feels like a willfully blind approach in reaching their decision. This was a huge blow. The majority of the Court focused their decision largely on section 1182(f) of the Immigration and Nationality Act (INA), which they held gives the President sweeping authority to exclude foreign nationals from the United States. The majority also held that the plaintiffs did not demonstrate a likelihood of success on the merits of their claim that the Proclamation violates the Establishment Clause of the First Amendment of the Constitution based on religious animus against Muslims.
In reaching their decision, the majority took it at face value that section 3(C) of Presidential Proclamation 9645 provides individuals impacted by the travel ban a valid waiver remedy. Section 3(C) of the Proclamation sets forth a waiver scheme for affected nationals to demonstrate eligibility for a waiver based on three criteria: 1) undue hardship if entry is denied; 2) entry would be in the national interest; 3) entry would not pose a threat to national security or public safety. However, those of us working directly with families and businesses impacted by the travel ban know that only a miniscule fraction have been “cleared” for a waiver by the U.S. government despite thousands of visa applications having been submitted by affected individuals. In fact, the same day the SCOTUS decision was issued, Reuters released data on waiver requests filed by such persons. Reuters reported that only 579 visa applications have been “cleared” for a waiver out of a total of 33,176 visa applications from the banned countries (less than 2% of visa applications) between December 8, 2017 and April 30, 2018, and that 189 more visa applications were “cleared” for a waiver from April 30, 2018 to May 31, 2018. This data is truly indicative of the closed-door policy that thousands are now facing under the travel ban.
The SCOTUS Muslim ban decision was heartbreaking for many, including me. What do you tell your client and their families who have been strung along since the first travel ban was announced in January 2017 (Travel Ban 1.0)? That our nation’s highest court has allowed our President to exclude them on the basis of their nationality? How do you keep filing waiver requests for individuals impacted by the travel ban, knowing that the recent data indicates that such waivers are very rarely “cleared”? At Pars Equality Center, we have U.S. citizens who prior to the ban were frequently visited in the United States by their family members from Iran. These same U.S. citizens are now facing the stark reality of a bar on reuniting with their family members in the United States, keeping their family separated indefinitely. We have spouses who have been forced into being single parents in the United States, waiting, desperate for their spouse to enter and co-parent, to be reunited as a family again, some even raising sick children on their own. We have visa applicants whose entire close family live in the United States, who have been waiting many years for a visa, facing the possibility that their dream of reuniting with their loved ones and living in the United States will only be crushed. For example, a single mother, Mara* has a teen son who is battling depression and suicidal thoughts; she can’t return to Iran because she has converted to Christianity and is active in her church. Returning to Iran could be a death sentence for her and her son. I can go on and on about the examples of individuals affected by this tragic ban, visa applicants facing life or death situations in their home countries, or families terrified they will never reunite. So much hardship. And for what?
By no means, however, is this decision the end of the story. We will continue to file waivers, advocate for our clients, record our results, take a tally, voice our findings, and fight back against this injustice. We will continue to seek information as practitioners and advocates to help discover the truth behind the Muslim ban by submitting Freedom of Information Act (FOIA) requests. In addition, AILA, in collaboration with Muslim Advocates, is currently collecting case examples of individuals impacted by Travel Ban 3.0 who have applied for waivers pursuant to the ban. AILA needs your help to gain a better understanding of how consular posts are processing these waivers.
The SCOTUS decision is not the end of the line. I will not give up the fight and neither will my colleagues, our clients, or their families. It does not befit America to treat someone as “less than” because of their religion, race, or national origin. Every single time there is an opportunity to challenge the Muslim Ban, and its purported waiver scheme, we will do so. Join us in the fight by writing a letter to the editor for your local paper, highlighting the real-world impact of the ban on your community and our nation’s shared prosperity. Ask your congressional delegation to hold the administration accountable for not offering waivers and refuse to allow this issue to die down in the public eye until the ban is repealed. Keep up the fight!
*Name changed to protect vulnerable clients