One argument the Trump administration made to the Supreme Court this spring to prove the legality of its travel ban on several majority-Muslim countries was that it had a robust waiver process that would allow people in on a case-by-case basis.
But new State Department statistics released on Tuesday show that U.S. consular officers issued waivers to the ban in only 2 percent of visa applications over the course of nearly five months.
On Tuesday, the ban was allowed to stand by the Supreme Court, which rejected arguments that it represented unconstitutional religious discrimination. Civil rights groups and Democrats denounced the ruling.
President Donald Trump has said the travel ban is needed to protect the United States against attacks by Islamist militants.
People from countries covered by the ban filed 33,176 applications for non-immigrant and immigrant visas between Dec. 8, 2017 and April 30, according to data in a June 22 letter from Assistant Secretary of State Mary Waters to Democratic Senator Chris Van Hollen. The letter was received by Van Hollen’s office on Tuesday, and his office provided it to Reuters.
Of those, 4,900 applications were rejected for reasons other than the travel ban, while 1,147 were found eligible for visas based on an exception to the ban. Those exceptions apply to specific categories including refugees, dual nationals or diplomats, and people in such categories do not need waivers.
Of the remaining 27,129 visa applicants, 579 were “cleared for waivers” - a rate of 2.1 percent. It was unclear how many of those cleared for waivers actually received U.S. visas.
Nearly 4,200 applicants have been interviewed but are “still awaiting a determination on a waiver,” the letter states. Between April 30 and May 31, a further 189 people were cleared for waivers, but it is unclear how many more applications were filed in that time.
The State Department did not immediately respond to a request for comment on the numbers.
The ban blocks citizens of Iran, Libya, North Korea, Somalia, Syria, and Yemen, and some Venezuelan government officials and their family members, from obtaining a broad range of U.S. immigrant and non-immigrant visas.
The restrictions vary from country to country - Somalians, for instance, can receive short-term visas and Iranians are allowed to get student visas, while North Koreans are blocked from all U.S. visas. People who fall into such carve-outs do not need waivers. Chad was previously covered by the ban but was removed in April.
In the months since the travel ban went into effect, “the number of cases cleared for waivers has grown at an increasing rate,” Waters wrote.
The ban has already had a dramatic impact since going into effect, with the number of people from the affected countries able to obtain visas plummeting. [See graphic: tmsnrt.rs/2tyHpRa]
The September proclamation establishing the ban said waivers could be granted if denying entry would cause “undue hardship,” if entry of the person would not pose a threat to the United States, and if entry would be in the national interest.
In oral arguments in April before the Supreme Court, U.S. Solicitor General Noel Francisco, defending the ban, told justices that consular officers had authority to issue waivers.
“The consular officer, him or herself, turns to the waiver provision and applies the criteria of the waiver provision,” Francisco said.
But in practice, attorneys and visa applicants say the State Department process is not transparent and rarely results in an actual waiver.
Christopher Richardson, a U.S. diplomat from 2011 to 2018 who most recently served at the U.S. Embassy in Madrid, stated in an affidavit in federal court this month that consular officers were not authorized to issue waivers on their own.
Instead, he said, they had to send notice to U.S. officials in Washington so they could decide to deny or grant the waiver. Richardson’s affidavit was first reported by Slate.
In a dissenting opinion on Tuesday, Supreme Court Justice Stephen Breyer examined the waiver process at length, and mentioned a case of a Yemeni child with cerebral palsy who was initially denied a U.S. visa. The incident “provides yet more reason to believe that waivers are not being processed in an ordinary way,” he wrote.
Reporting by Yeganeh Torbati; Editing by Peter Cooney