On Tuesday, the Supreme Court ruled on Presidential Proclamation 9645, deciding that President Donald Trump’s travel ban of nationals from five Muslim-majority countries and a small number of North Koreans and Venezuelans should not have been enjoined by a district court as a long-promised Muslim ban. The case was decided on statutory and First Amendment free exercise grounds.
In part of that 5-4 ruling, decided along party lines by the court’s conservative majority, Chief Justice John Roberts laid out some of the “features of the entry policy [that] support the Government’s claim of a legitimate national security interest.” Basically, these were some of the factors that helped make it plausibly not a Muslim ban in the eyes of the five deciding justices. The third of the three listed reasons offered in this section of the opinion was the proclamation’s “case-by-case” waiver program that purports to allow in affected nationals on the basis of undue hardship, national security, and national interest (e.g., benefits to Americans, such as family members or learning institutions who might gain by these visas being granted).
As I reported earlier this month—and as was noted in the dissents of the liberal justices—former consular officer Christopher Richardson contradicted the government’s claims about the waiver process in a sworn affidavit filed four weeks ago in a separate case, saying “the waiver [process] is merely ‘window dressing.’” As I further reported, another consular officer has cast similar doubts about that waiver process calling it “fraud,” and Department of State officials have directly contradicted the government’s description of the waiver process in statements reportedly made to immigration attorneys. This “window dressing” assessment would be in line with stories of countless seemingly deserving visa applicants being denied waivers, including—initially—a ten-year-old girl with cerebral palsy. The four liberal justices made similar determinations about the appearance of the waiver process as window dressing on the basis of this limited information, with Justice Stephen Breyer noting that “the Court’s decision today leaves the District Court free to explore these issues on remand.” (To what degree the lower courts will have an opportunity to explore those issues based on Tuesday’s ruling remains unclear.)
Acquiring any facts about that waiver process until now has been such a challenge that Sen. Chris Van Hollen last week slipped baseline disclosure requirements into a broader appropriations package. On Tuesday, the same day that the Supreme Court opinion came down mooting the issue for the time being, the State Department finally released some of those updated numbers. The letter to Van Hollen’s office, dated June 22 but only received by his office on Tuesday, according to Van Hollen communications director Bridgett Frey, shows that a small percentage of visa applicants are being granted waivers.
Those numbers cover the period from Dec. 8 through April 30. In that period, 33,176 nationals from the affected countries sought visas. Of them, 4,900 were found ineligible for reasons other than the travel ban. Another 1,147 received visas under the travel ban’s limited set of exceptions. And 579 in that period were actually granted one of these “case-by-case” waivers. (That number was 809 waivers as of June 15, according to the State Department.) That would be 26,550 people who can’t get visas under Trump’s travel ban in its first five months.
So to do some quick math: That means that 1.7 percent of total applicants received waivers. That would seem to be 2.1 percent of eligible applicants, to be a bit more precise. In his dissent on Tuesday, Justice Breyer noted that the number of waivers described to the court during oral arguments “when compared with the number of pre-Proclamation visitors, accounts for a miniscule percentage of those likely eligible for visas, in such categories as persons requiring medical treatment, academic visitors, students, family members, and others belonging to groups that, when considered as a group (rather than case by case), would not seem to pose security threats.” Justice Roberts dismissed Breyer’s observation in a footnote as “selective statistics.” However each was ultimately going to rule, it might have been useful for both to have had access to the full and accurate statistics prior to the release of their opinions.