Correct the Record, Noel Francisco

The solicitor general gave the Supreme Court incomplete and misleading information about the travel ban’s waiver process.

Noel Francisco.
Noel Francisco attends his Senate Judiciary Committee confirmation hearing for on Capitol Hill on May 10, 2017, in Washington.
Mark Wilson/Getty Images

Donald Trump’s third travel ban, which the Supreme Court is set to rule on any day now in Trump v. Hawaii, prohibits most nationals from five Muslim-majority countries, North Korea, and a small number of Venezuelans from acquiring visas to enter the United States. The administration’s executive order, however, includes a provision allowing visa applicants to receive waivers from the ban on the basis of three criteria: undue hardship, national interest, and national security.

During April’s oral arguments in Trump v. Hawaii, Justice Stephen Breyer questioned whether this waiver provision was mere “window dressing,” as the attestations of many waiver applicants who’d been denied made it appear. Solicitor General Noel Francisco assured the court that the process was legitimate, specifically citing the role of consular officers in deciding who should receive waivers. “If you’re not subject to [one of the ban’s other] exception[s], then the consular officer, him or herself, turns to the waiver provision and applies the criteria of the waiver provision,” Francisco told the court. Francisco reaffirmed this position later in oral arguments, telling Justice Sonia Sotomayor, “State Department consular officers automatically apply the waiver process in the course of every visa application. And they are doing that.”

Last week, Slate published statements from a pair of consular officers that called Francisco’s assertions into question. Both of the consular officers said that, counter to what Francisco argued before the Supreme Court, they had no discretion to grant waivers. One of those officers, Christopher Richardson, said in an affidavit earlier this month in a separate travel ban–related case that it was left to officials in Washington to “make the decision to grant or deny the waiver.”

Slate has since found further evidence that affirms the claims in Richardson’s affidavit and that suggests Francisco gave the court incomplete and misleading information about how these decisions are made. (The Department of Justice declined to comment when asked if Francisco stands by his statement to the court and if he was considering correcting the record.)

On Friday, during the American Immigration Lawyers Association’s Annual Conference on Immigration Law in San Francisco, a State Department official laid out the waiver process in a panel titled “U.S. Department of State (DOS) Open Forum.” Immigration attorney Daniel J. Parisi moderated that panel, which included Matthew C. McNeil of the Department of State. According to Parisi, McNeil—whose title is chief, supervisory attorney adviser, Advisory Opinions Division—said that consular officers have discretion to make their own rulings on two of the waiver criteria: undue harm and national interest. But McNeil reportedly said that decisions regarding the third criterion—national security—are made by the Department of State in conjunction with other federal agencies.

“The consular officer can make a decision on the first two prongs,” Parisi said, summarizing McNeil’s explanation. “But if they get to the third prong, it has to go through the Department of State in Washington.”

That means it’s ultimately officials in Washington, not the consular officers themselves, who make the final waiver decision. “Once [the federal agencies have] made their determination it’s [the] Department of State that authorizes the consular post to issue the visa,” Parisi told me.

Parisi continued, summarizing McNeil’s comments:

The consular officer, once they get to prong three, has to send it to the Department of State and they look into the national security issue. … Once that decision is made [that] there’s going to be a visa issued, then [State] instruct[s] the consular post. … If the security clearance is approved, then the State Department can grant the waiver and the visa can be issued.

Parisi said this wasn’t the first time the State Department had explained the travel-ban waiver process to AILA officials. The AILA’s Department of State Liaison Committee met with State Department officials on April 12. Parisi said the AILA committee was told essentially the same thing during that meeting.

That April meeting took place 13 days before oral arguments in Trump v. Hawaii at the Supreme Court. This means Francisco’s representations to the court came after State Department officials reportedly provided immigration attorneys with a different explanation of the waiver process.

Two lawyers who attended Friday’s panel echoed Parisi’s summary of McNeil’s remarks. Immigration attorney Ursula Owen tweeted that the State Department official “said that all waiver applications go to State in DC and can’t be granted by consular officers.” Another immigration attorney who attended the panel, Elissa Taub, tweeted, “Consular officer makes waiver decision in concert with the visa office, esp first 2 prongs (hardship & national interest). Security prong is handled stateside at DOS.”

“My recollection of what [McNeil] said during that panel … is the same as what I tweeted,” Taub told me. “A consular officer has discretion to decide whether to take on the waiver application. They get to review the first two prongs. They have discretion on determining undue hardship and the national interest claim, but the national security interest is handled back in the United States. That part of it is not handled at the post.”

A third attendee, Lily Axelrod, couldn’t remember precisely what McNeil told the panel. She did attend a recent Federal Bar Association conference, however, at which she says a different Department of State official explained the waiver process similarly. On May 18, Nick Perry, the deputy director of legal affairs for the Visa Office at the Department of State’s Bureau of Consular Affairs, spoke on a State Department panel. Here is Axelrod’s summary of her contemporaneous notes from that presentation:

The travel ban waiver adjudication process is as follows: first the consular officer evaluates for eligibility for the underlying visa. If the person is eligible, the consular officer evaluates whether issuance of the visa is in the national interest, and evaluates hardship. If the applicant passes both of these hurdles, the consulate sends the file to DC to evaluate whether there’s a national security risk [the third criteria]. … They didn’t elaborate on how the “national security” decision is made.

Axelrod also sent Slate her handwritten notes from the meeting. In the top left-hand corner is a box that says “DOS.” Below that the words travel ban waivers are underlined. The notes then state the number of waivers approved at the time—655—and describe the waiver process: “consular officer evaluates ntl interest + hardship. … then public security risk evaluated by (?) in D.C.”

In his affidavit, Richardson disagreed with the assertion that consular officers have full discretion to review whether visa applicants are deserving of waivers, even under the national-interest and undue-hardship criteria. According to Richardson, consular officers’ decisions regarding those criteria were dictated by unclassified State Department guidance memos, which have not been released for public inspection. A second consular officer affirmed Richardson’s view, saying that “the waiver process is fraud” and that the legal guidance in question has “no rational basis.”

Richardson, the second consular officer, and State Department officials all appear to agree, however, that consular officers aren’t themselves permitted to adjudicate the national security criterion. In other words, consular officers don’t have final say on which visa applicants receive travel-ban waivers. That’s not what Noel Francisco told the Supreme Court.

During oral arguments in April, Francisco stated that the consular officer “him or herself … applies the criteria of the waiver provision.” He didn’t say that the consular officer applied two of the three criteria, nor did he say that the consular officer applied the criteria and then the decision was ultimately made in Washington. It’s fair to say, then, that the description Francisco gave to the justices of the Supreme Court is different than the one State Department officials have reportedly given to immigration attorneys.

The State Department’s most detailed public explanation of its waiver process came in a February letter to Sen. Chris Van Hollen. That letter stated:

If the consular officer determines, after consultation with the Visa Office, that an applicant does not pose a threat to national security or public safety and the other two requirements have been met, a visa may be issued with the concurrence of a consular manager.

While Francisco implied that consular officers are in charge of the waiver process, this letter implies that the State Department has at least some involvement in decisions regarding the national security criterion.

When asked on Wednesday who had final say over the waiver process, a State Department official told Slate:

The bases on which an applicant may be excepted from the Proclamation or qualify for a waiver are clearly explained in the Presidential Proclamation itself. In coordination with consular section management, and following any required case-specific administrative processing, a consular officer carefully reviews each case to determine if the applicant is covered by the Proclamation and, if so, whether the case qualifies for a waiver.

The State Department official did not respond on the record to numerous questions about the reported assertions of McNeil and Perry regarding how the waiver process works.

Why would it matter if Francisco gave the court incomplete and misleading information about the travel-ban waiver process? A large part of the government’s argument to the court was predicated on the assertion that the Trump administration deserved the same deference past administrations received with regard to immigration-policy decisions. Francisco argued that the waiver provisions in Trump’s travel ban were similar to the exemption provisions in an executive order signed by President Jimmy Carter. Justice Anthony Kennedy, who appears as always poised to be the swing justice in this case, seemed particularly taken by the argument that the Trump travel ban was similar to the immigration orders put forward by previous presidents, stating that this proclamation was even more detailed than ones issued by Carter and Ronald Reagan.

If what the State Department has reportedly been telling immigration attorneys is correct, then Francisco could correct the record so the justices have complete and accurate information about the travel ban before they rule. Last year, in arguing that an American Civil Liberties Union attorney be disciplined by the Supreme Court for not updating the government on the status of an undocumented immigrant teen’s abortion, Francisco himself stated that attorneys must always present accurate information and that they should correct the record if it emerges that this information is or has become incorrect. In a brief to the Supreme Court in Azar v. Garza, Francisco wrote:

Members of the Bar of this Court … often rely on—and should be safe in relying on—the duty of counsel to update statements that have become materially false, let alone as a result of counsel’s own conduct.

In this case, Francisco should follow his own guidance and give the court a full accounting of how the travel ban’s waiver process works, and who has the final say on how the government decides which visa applicants are allowed into the United States.