The travel ban waiver sham

Two years ago this week, President Trump signed an executive order banning travelers from a number of Muslim-majority countries from entering the United States. The fallout has been dire.

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Our organization, the International Refugee Assistance Project, was among the groups that filed the first challenge to the executive order, and we won a series of injunctions temporarily blocking the ban from being enforced. But in June the Supreme Court upheld a modified version of the ban in a 5-to-4 decision. The majority sided with the Department of Justice, which had claimed that a “robust” waiver process would allow citizens from the blacklisted countries to enter the United States if they met certain reasonable criteria.

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This assurance was a key rationale for the court’s decision. Chief Justice John Roberts’s majority opinion argued that a waiver process would provide humanitarian exceptions to the ban and thus supported “the government’s claim of a legitimate national security interest.” However, in their separate dissents, Justice Stephen Breyer raised serious concerns about the waiver process, and Justice Sonia Sotomayor argued that it was a “sham.”

It turns out they were right.The waiver process is opaque, arbitrary and unreasonably harsh, and it has not mitigated the ban’s effects on thousands of families in dire circumstances. It makes a mockery of the rule of law.

The waiver provision in the ban stipulates that those barred by their nationality from entering the United States may be granted waivers if they satisfy a three-part test: Applicants must show that being denied entry would cause “undue hardship,” that their entry would be “in the national interest” and that their entry would “not pose a threat to the national security or public safety of the United States.” But there are no published instructions as to how or where to apply for a waiver. Nor is there a form to fill out. This is in direct violation of the text of the ban, which explicitly directs the secretaries of state and of homeland security to clarify the process.

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Waivers appear to be given reliably only when much publicity is brought to bear.

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We have no way of knowing how many people have tried to obtain a waiver. What we do know is that the State Department has interpreted the ban’s provisions in an excessively harsh manner: Between Dec. 8, 2017 and April 30, 2018, according to the only data the administration has made available, roughly 98 percent of people who applied for a visa did not receive a waiver.

Thanks to the Freedom of Information Act, we know that the State Department will not even consider an applicant’s home country conditions when evaluating whether the travel ban imposes undue hardship.

  NYT

...but hey, do what you want...you will anyway.