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Judge Advances Class Action Over Travel Ban Waivers

A federal judge on Monday refused to dismiss a class action claiming the Trump administration uses a sham travel ban waiver process to deny virtually all waiver-eligible immigrants from five Muslim-majority countries entry into the United States.

SAN FRANCISCO (CN) – A federal judge on Monday refused to dismiss a class action claiming the Trump administration uses a sham travel ban waiver process to deny virtually all waiver-eligible immigrants from five Muslim-majority countries entry into the United States.

FILE- In this June 30, 2017, file photo, critics of President Donald Trump's travel ban hold signs during a news conference with Hawaii Attorney General Douglas Chin in Honolulu. A federal judge in Hawaii on Thursday, July 6, left Trump administration rules in place for a travel ban on citizens from six majority-Muslim countries. U.S. District Court Judge Derrick Watson denied an emergency motion filed by Hawaii asking him to clarify what the U.S. Supreme Court meant by a "bona fide" relationship in its ruling last month. (AP Photo/Caleb Jones, File)

"Plaintiffs allege facts plausibly demonstrating that a de facto policy of blanket denials has usurped individualized waiver decisions," U.S. District Judge James Donato wrote in his 19-page ruling.

Thirty-six plaintiffs sued the Trump administration in March 2018, claiming the government failed to follow its own guidelines and procedures for reviewing travel ban waiver requests as required by law. The plaintiffs are immigrants or family members of immigrants from Iran, Libya, Somalia, Syria and Yemen.

"We are encouraged by the court's decision today allowing some of our claims against the government to move forward," plaintiffs' attorney Sirine Shebaya of Muslim Advocates in Washington said by email. "The court rightly found that we have alleged enough to show that the government is not following its own policies and procedures."

Some plaintiffs reported State Department officials refused to accept documents in support of their waiver requests. Others said they were never given a chance to apply for a waiver, which can only be done during a visa interview. Those who had visa interviews before the third travel ban proclamation was issued in September 2017 also never got an opportunity to seek a waiver, according to the lawsuit.

The complaint describes how waiver denials have prevented parents from attending their children’s weddings and being present for the births of grandchildren. They have also separated sick and dying parents from children in the U.S., blocked scientists from working and doing research at U.S. universities, and made those who invested $500,000 or more in U.S. businesses ineligible for visas under the EB-5 immigrant investor program.

As of Feb. 25, 2018, only two waivers were granted out of 8,406 requests, an approval rate of 0.02 percent. The number of granted waivers gradually rose to 768 out of 33,176 as of May 31, 2018, a 2.3 percent approval rate, according to State Department data.

In his ruling, Donato cited a declaration by a former consular officer who said, "We were not allowed to exercise that discretion" and that "There really is no waiver." A sample waiver letter with a pre-checked "denied" box also supported the plaintiff's allegations as plausible, Donato added.

However, the judge dismissed with leave to amend claims that the waiver system violated plaintiffs' Fifth Amendment rights to equal protection and due process. He found entry into the country is not one of the "constitutionally protected fundamental rights."

On allegations that mass waiver denials were motivated by bigotry, Donato said that claim only holds up if President Donald Trump's travel ban "unconstitutionally excludes Muslims or illegally discriminates on the basis of nationality, a proposition that the Supreme Court turned aside in Hawaii."

The Supreme Court upheld the travel ban in Trump v. Hawaii in June 2018, finding the president has clear authority to restrict the entry of aliens whenever he finds their entry "would be detrimental to the interests of the United States."

Shebaya of Muslim Advocates said her team will continue the fight in court to make sure the government administers the travel ban waiver process in a fair and unbiased way.

"When the government holds itself out as providing a waiver process, it has to keep that promise, and we will continue to fight to ensure that families and individuals covered by the ban are not cheated out of their one shot at being reunited with their families and loved ones," Shebaya said.

The U.S. Department of Justice did not immediately return an email seeking comment Monday afternoon.

Countries subject to the travel ban include Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen.

An amended complaint is due by Feb. 25.

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