Earlier this week, a group of people whose visa applications were not approved under the current administration’s travel ban filed a lawsuit against Homeland Security Secretary Kirstjen Nielsen, Secretary of State Mike Pompeo, and various government agencies. The lawsuit, Emami v. Nielsen, was filed in the Northern District of California, and plaintiffs come from all five of the Muslim-majority countries affected by the ban: Somalia, Yemen, Iran, Syria, and Libya.
The Trump administration claims that it makes exceptions to the travel ban for people with particularly compelling circumstances. However, there is substantial evidence that very few people have successfully received these waivers, despite meeting the three main points of criteria:
- that they would suffer “undue hardship” if not allowed to come to the United States;
- that letting them come wouldn’t hurt the US’s national security or public safety, and
- that it would be in the “national interest” of the United States to admit them.
According to the official text of the travel ban, the consular officer was supposed to grant a waiver if a person met all three.
Rather than asking whether Trump’s travel ban is legal or constitutional, this lawsuit inquires about the way the administration grants waivers. Seeking clear answers to this question is important, as the existence of a waiver process was one of the factors that led Chief Justice Roberts to conclude that that the travel ban was because of a legitimate security concern rather than direct racism and discrimination against Muslims.
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