THE TORCH: CONTENTSBy Esther Sung, NILC staff attorney
APRIL 25, 2018

Today, after two executive orders, one presidential proclamation, and fifteen months of litigation, the U.S. Supreme Court finally heard oral arguments on the legality of President Trump’s Muslim ban.

The current version of the ban blocks from entering the U.S. most travelers and immigrants from six Muslim-majority countries — Chad, Iran, Libya, Somalia, Syria, and Yemen — although Chad was recently removed from this list after improving its “identity-management and information sharing practices.” The ban also blocks travelers and immigrants from North Korea and certain Venezuelan government officials and their families.

Despite having itself been blocked by two U.S. district courts, the ban has been in place since December 4, 2017, when the Supreme Court allowed it to go into effect while it was being litigated. The U.S. State Department recently reported that in the first month of the ban, only two out of 8,406 visa applicants directly impacted by the ban were granted waivers allowing them to enter the U.S.

Indeed, of particular concern to Justices Breyer and Sotomayor in today’s argument was the possibility that the ban’s waiver provisions are merely “window dressing.” Justice Breyer pointed out that a significant number of people seeking visas probably fit within the exemplars expressly identified in the presidential proclamation as potentially eligible for an exemption from the ban. Although both justices pressed the government to explain what mechanisms are in place to ensure that the ban’s promise that waivers are available “is, in fact, a real waiver process,” the government was unable to provide substantive information about the availability of waivers. The government was only able to represent that approximately 400 individuals have received waivers — but, as Justice Breyer pointed out, 400 is paltry in comparison to the 150 million people the proclamation bans from entering the U.S.

Instead, the government focused on defending the ban before the Court as the product of a “multi-agency worldwide review that applied neutral criteria.” Throughout its argument, the government took pains to distance the ban not only from its predecessor executive orders, but also from President Trump and the many anti-Muslim statements he has made throughout his candidacy and presidency.

Neal Katyal, representing the ban’s challengers, argued that if the Court adopts the expansive view of executive power advanced by the government, the Court will be giving the president the power to line-item veto any provision of the country’s immigration laws that he wants to override. He argued that the ban countermands Congress’s finely reticulated immigration scheme, violates the Immigration and Nationality Act’s prohibition against nationality-based discrimination in the issuance of immigrant visas, and denigrates Islam in violation of the First Amendment.

It was clear that the government’s strategy depended on stripping the ban of its history and context so that the government could divorce the ban from President Trump’s many anti-Muslim statements and thereby argue that the ban is a permissible exercise of executive power. But by doing so, the government could only duck and weave around the overwhelming evidence of the president’s anti-Muslim animus, rather than confronting it head-on.

Among those present for today’s argument were Senator Mazie Hirono of Hawaii; Karen Korematsu, the daughter of Fred Korematsu, the named plaintiff in Korematsu v. United States, which upheld the imprisonment of Japanese-Americans in World War II; and Lin-Manuel Miranda, Pulitzer Prize–winning author of the musical “Hamilton.” Friend-of-the-court briefs calling on the court to strike down the ban had been filed by retired government officials and military officers; various states and major cities and counties; Amazon, Facebook, and over a hundred other companies; Catholic bishops and numerous other clergy of several different religions; universities and other institutions of higher learning; and Karen Korematsu and other children of Japanese-Americans who were held in internment camps during World War II.

A recording of today’s argument is available here; a transcript of it is available here.

THE TORCH: CONTENTSBy Ibraham Qatabi, Center for Constitutional Rights
APRIL 25, 2018

Today the U.S. Supreme Court will hear oral arguments on a legal challenge to President Trump’s travel ban, which bars nationals of several Muslim-majority countries from entering the United States. Countless lives lie in the balance of this decision.

In this post, I focus on the ban’s impact particularly on Yemeni-Americans and their families, as Yemen is one of the countries listed in the executive orders that initiated the ban. The ban denies U.S. citizens and lawful permanent residents of Yemeni descent who are in the U.S. the right to be with their children, spouses, and other close relatives, many of whom are stranded in third countries as they transit out of the war in Yemen.

Yemenis in America: Who we are

Yemeni-Americans have been part of the American fabric for many generations. For more than a century, they have worked on railroads and in the steel and the automobile industry stretching from Buffalo and Lackawanna, New York, to Detroit and Dearborn, Michigan. Today they run small and midsize successful businesses from New York City in the east to Oakland, San Francisco, and Bakersfield, California, in the west. Yemeni-Americans have also historically maintained close ties with both the U.S. and Yemen, with families often going back and forth between the two countries.

The ban’s implementation

Since December 2017, the Center for Constitutional Rights and many other organizations have received reports that hundreds of U.S. citizens’ spouses and children were called to come to the U.S. embassy in Djibouti, where their passports were returned, along with a document stating that they’d been denied a U.S. visa and were not eligible for a waiver. The document also stated that this decision was “final.”

Yet Muslim Ban 3.0, the latest version of the Muslim ban, which is currently in effect and which was initiated by a presidential proclamation instead of an executive order, contains a provision for granting a waiver to certain people affected by the ban. A waiver would exempt from the ban the people to whom it is granted. To qualify for it, they would have to show that they would experience undue hardship if they were denied a visa, that their entry into the U.S. would be in the national interest, and that it would not pose a threat to national security or public safety.

The proclamation lists several examples of situations in which a waiver would be appropriate and assumes that consular officers will examine whether people are eligible for the waiver on a case-by-case basis. It is striking to me how many members of Yemeni-American families would seem to qualify for the waiver, based on the proclamation’s plain language. The Yemenis who have been denied visas are overwhelmingly immediate relatives of U.S. citizens or lawful permanent residents. And due to the war in Yemen, most if not all of them experience hardship when denied reunification with their U.S.-based parents, children, or siblings. According to the United Nations, Yemen is considered “the world’s worst humanitarian disaster” in half a century.

Following the start of the war in Yemen, the U.S. embassy in San’aa, Yemen, was closed and all Yemeni visa petitions were transferred to U.S. consulates and embassies in other countries. As a result, these Yemeni relatives of Americans must travel to another country, usually Djibouti, to complete processing of their visa petitions. So not only are they stuck in limbo, they are often waiting for the bad news in third countries, far from their homes.

Thus, although the proclamation states that waivers are to be issued on a case-by-case basis and though it prohibits consular and U.S. Customs and Border Protection officers from issuing waivers to groups or categories of applicants, the U.S. embassy in Djibouti has done exactly the opposite. It has issued en masse visa denials — to children, mothers, fathers, spouses, and other relatives of U.S. citizens and lawful permanent residents seeking to reunite with their families in the U.S.

My own organization heard of more than a hundred visa denials. Some Yemenis had tales of bringing their children who needed immediate medical attention to the consular interviews; others came with a detailed waiver petition to demonstrate their qualifications for a waiver. Most, however, were not even given a chance to seek a waiver, as their interviews had taken place months prior to the decision. Some had been told that their visas were approved only to learn later that they’d been denied. In several cases we reviewed, some siblings had obtained a visa prior to the ban’s implementation, while others had not.

Nobody received a waiver.

The ban’s impact

To assess the impact of Trump’s ban and force some transparency into its seemingly arbitrary implementation, last month the Center for Constitutional Rights and a team from Yale Law School met with approximately 50 families in Djibouti — all U.S. citizens or their children, parents, or spouses. We hope to release our findings once we are able to process more thoroughly the information we gathered, including placing this recent crisis into the context of a much longer history of anti-Yemeni and anti-Muslim discrimination. For now, ahead of the Supreme Court argument, I feel it’s important to provide a few of the stories that stuck with me most, as a reminder of what’s at stake.

In one case, a three-year-old child had to be separated from his parents, who stayed behind in Djibouti while he was sent to the U.S. to be with extended family thousands of miles away. His mother was denied a visa.

In another case, a father had to choose between keeping his job in the U.S. or joining his stranded wife and children in Djibouti. When he was forced to choose the former, his children, who couldn’t understand, told him they felt abandoned by him.

And many families had to decide to return to war-torn Yemen after receiving rejections.

Trump’s ban has not only distressed Yemeni-Americans by separating families, it has created huge financial burdens. Many individuals were forced to leave their jobs or studies in the U.S. so they could support their spouses and children stranded in Djibouti, Egypt, and Malaysia. They were expecting to be in Djibouti for a few weeks and ended up being stranded for months, or in some cases a year. Life in Djibouti is expensive. The average monthly expense spending per family is about $3,000-5,000.

An uncertain future

Yemeni-Americans, like so many other impacted communities, are waiting for the Supreme Court’s decision. In Djibouti, everyone I met with wanted to know: If the Court strikes down the Muslim ban in its entirety, is the Court going to force the government to reopen the hundreds of cases that were denied because of the executive orders and presidential proclamation? Will they need to reapply and again wait an indefinite amount of time to reunite with their families? And if the Court upholds the ban, will they ever be able to reunite with their families?

Many of those I met with in Djibouti had high hopes that the Supreme Court justices will uphold the values of the U.S. Constitution, as lower courts across the nation have in these Muslim ban cases. They’ve closely followed the litigation as it has made its way up and down our judicial system, with their lives hanging in the balance. They strongly believe that, surely, although the president may have the power to make policies, he certainly does not have the power to discriminate. The detail and attention with which they’ve followed the courts’ decisions in these cases are remarkable, and they serve as a reminder to me: Regardless of what the justices ultimately decide, the fight for justice and equality will be a long one — one in which Yemeni-Americans must be fully engaged along with our fellow Americans.

THE TORCH: CONTENTSBy NILC staff
APRIL 23, 2018

Two weeks ago, we sued the Trump administration over its decision to separate a Dreamer from his loving husband. Marco Villada is a DACA recipient who grew up in California and knows no other place as home. In 2014, he married the love of his life, Israel Serrato, and they built a vibrant life together. Despite following all the rules for adjusting Marco’s status to lawful permanent residence, Marco and Israel have been unjustly separated from each other by a consular official’s mistaken decision.

Marco is currently blocked from coming home to Los Angeles. He went to Mexico to finish the process of obtaining a visa through his marriage to Israel, trusting the adjustment process and fully believing he would be able to return. Despite assurances by immigration officials that Marco would be allowed back into the U.S., U.S. consular officials in Juarez barred him from returning.

As he has with many Dreamers, President Trump failed Marco when he cruelly terminated the DACA program. Congress failed Marco again by failing to pass the Dream Act. Now, finally, the Trump administration has failed Marco yet again by barring him from coming home and thus separating him from his husband, family, friends, and life here in the U.S.

If you stand with Marco and Israel, here are four things you can do to help #BringMarcoBack:

1. Sign the petition urging President Trump and his administration to stop hurting Dreamers and #BringMarcoBack.
2. After you sign the petition, spread the word! Share the petition and the video with your friends on Twitter and Facebook.
3. Write Marco and Israel a letter of support. Separation from loved ones isn’t easy. Fighting injustice in front of the world isn’t easy, either. Let Marco and Israel know you admire their courage in standing up for themselves and for what is right. Write your letter and send it to [email protected] with the subject line “Letter of Support for Marco.”
4. Contact your senators and representatives in Congress, share Marco’s story, and demand they pass the Dream Act now. If Congress had done its job a long time ago, Marco would not be in this situation. We can’t let this kind of thing happen to any more Dreamers. You can reach out in three ways:
   – Write your senators and representative a letter telling them about Marco and Israel and asking them to talk about this injustice on social media, in floor speeches, and with their colleagues.
   – Call your senators and representative in Congress, share Marco’s story, and ask them to make sure all Dreamers are protected. Call 202-224-3121 and tell them to pass the Dream Act now.
   – Tweet at your senators and representative! Share Marco’s story with them on social media via Twitter and Facebook.

We hope you will join us in demanding justice for Marco and Israel. Thank you for lifting your voice and spreading the word to help us #BringMarcoBack.

THE TORCH: CONTENTSBy Elica Vafaie
APRIL 17, 2018

Since January 27, 2017, we have been fighting the Muslim ban in the courts and on the streets. As an Iranian-American lawyer, with family, friends, and clients coming through San Francisco International Airport during Muslim Ban 1.0, I remember how thousands of community members and our allies came out to the airport in protest. That resistance and solidarity kept a national spotlight on the Muslim ban and kept us going in securing the release of individuals wrongfully detained at the airports.

Fast forward to March 30, 2018. Hundreds of civil rights organizations representing individuals impacted by this third iteration of the Muslim ban, members of the Japanese-American community, immigration and constitutional law experts, LGBTQIA leaders, business and labor organizations, states, elected officials, and national security experts filed amicus (friend-of-the-court) briefs in opposition to the Muslim ban. Amicus briefs will provide perspectives and expertise to the Supreme Court on legal issues as it prepares to hear oral arguments on the case on April 25, 2018.

I am personally moved by the amicus brief of Karen Korematsu, Jay Hirabayashi, and Holly Yasui  —  the children of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui. They see the disturbing relevance of the Supreme Court’s decisions in their fathers’ infamous cases challenging the mass removal and incarceration of Japanese Americans during World War II. Their amicus brief outlines the parallels between the two cases as the U.S. government is once again asking the Court to blindly justify blanket action against an entire group.

It is also critical that the amicus briefs capture the impact Muslim Ban 3.0 has had on our communities. Since December 4, 2017, when the Supreme Court allowed Muslim Ban 3.0 to go into full effect while lower courts heard challenges to the case, we have been inundated with cases involving mass visa denials for children, spouses, parents, and grandparents, including Iranian, Yemeni, Somali, Syrian, Libyan U.S. citizens and green card–holders, students, and people with urgent medical issues.

While the text of Muslim Ban 3.0 claims to have a “waiver process,” by which if a waiver is granted the ban will no longer prevent the applicant from obtaining a visa, the reality on the ground is chaos, because there is no process, and waivers are not being granted. The amicus briefs of the Pars Equality Center and immigration law scholars capture the devastation and hardship I have been witnessing and fighting against for the last year as well as the legal limbo and whiplash of a year of litigation over three versions of the Muslim ban. All versions have been found to violate federal law by lower courts.

The Muslim ban is only one of many attacks on immigrant communities we are fighting. Hundreds of immigrants’ rights organizations, practitioners, and professors  —  including the Immigration Law Clinic at my alma mater, the University of California, Davis  —  that are fighting the rescission of the Deferred Action for Childhood Arrivals, or DACA, program as well as the detention and deportation of immigrant community members, submitted amicus briefs outlining how the Muslim ban clearly violates the Immigration and Nationality Act.

These amicus briefs highlight key points for the Supreme Court to consider as it hears the case. And I hope they will push the Court to rule in our favor.

Join us in rallying on Wednesday, April 25, to say #NoMuslimBanEver.

Elica Vafaie is a staff attorney at Advancing Justice  –  Asian Law Caucus and program manager of its National Security and Civil Rights Program.

THE TORCH: CONTENTSBy Subha Varadarajan, Muslim Ban Campaign Legal & Outreach Fellow
APRIL 2, 2018

On April 25, 2018, the U.S. Supreme Court will hear arguments on whether one of the latest versions of Trump’s Muslim ban exceeds the authority of the president under federal immigration law and whether it violates the U.S. Constitution by discriminating against a certain religious group. Unlike prior versions of the ban, this iteration is permanent and was allowed to go into full effect until the Supreme Court issues a final ruling.

A Muslim ban is definitely in effect. Every day it’s separating loved ones.

After a prior version of the Muslim ban failed to make it to the Supreme Court because it expired, a later version, Muslim Ban 3.0 — which indefinitely bans most nationals from six Muslim-majority countries from entering the U.S. — has faced new challenges. After the ban was largely blocked by federal district courts, the Trump administration appealed these cases to the Ninth and Fourth Circuit Courts of Appeal.

On December 4, 2017, before the circuit courts heard the case, the Supreme Court issued an order allowing the Muslim Ban 3.0 to go into full effect until it issues a final ruling on the case, regardless of how the circuit courts ruled. This means that for nearly four months, we have had a full version of a Muslim ban in place for the first time since January 27, 2017, when Muslim Ban 1.0 was implemented. In that time, countless families have been separated because of a clearly discriminatory policy.

While the Supreme Court did not comment or rule on the legality of the ban, its decision to allow the ban to go forward for the time being confirmed the fears of Muslims here in the U.S. and around the world, and reinforced a feeling of uncertainty for those unable to make plans that many of us take for granted.

The lower courts rejected this latest Muslim ban. Now it’s up to the Supreme Court to decide.

On December 22, 2017, the Ninth Circuit Court of Appeals, in Hawaii v. Trump, affirmed that the latest version of the Muslim ban is still illegal, because it “once again exceeds the scope of [the president’s] delegated authority.” The Ninth Circuit issued a preliminary injunction temporarily blocking the policy from being applied to those who have a “bona fide relationship” with people or institutions in the U.S. The Trump administration appealed this decision to the Supreme Court. The court announced its decision to hear the case on January 19, 2018, and later set a hearing date for April 25, 2018.

On February 14, 2018, the Fourth Circuit Court of Appeals, which heard several challenges to this version of the Muslim Ban, including IRAP v. Trump and Zakzok v. Trump, also rejected the ban and also issued a preliminary injunction, ruling that it violates the U.S. Constitution’s Establishment Clause. The Fourth Circuit found that the policy is “unconstitutionally tainted with animus toward Islam” and that “an objective observer could conclude that the President’s repeated statements convey the primary purpose of the Proclamation — to exclude Muslims from the United States.”

While the Supreme Court has not yet decided if it will join this case with the Hawaii case and hear both of them at the same time, it has said that it wants to hear arguments on both the statutory claims — whether the ban violates the president’s authority under federal law — and the constitutional ones — whether the ban violates the Establishment Clause because it discriminates against a particular religious group.

Unfortunately, despite these two circuit court opinions rejecting large parts of the ban, the Supreme Court’s prior order still allows the ban to remain in effect until it issues a final decision.

Need a reminder of what all the different Muslim Bans are and whom they impact? Check out our explainer that gives you an at-a-glance overview.

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More on the Trump administration’s discrimination against people from Muslim-majority countries:

• Supreme Court Allows Discriminatory Muslim Ban to Stand
• Government’s Supreme Court Argument Tries to Divorce from Trump’s Own Words and Record His Ban on Travel from Muslim-majority Countries
• Trump’s Ban As Experienced by Yemeni-Americans
• A Year in Review: Reflections on Resistance against the Muslim Ban
• Muslim Ban 3.0 (and 4.0): How We’re Fighting in the Courts, in Congress and in Our Communities
• Trump’s Muslim Ban (on our Immigration Enforcement Issues webpage)