SAN FRANCISCO (CN) - A federal judge hinted Thursday that he will likely advance a lawsuit claiming the U.S. government uses a "sham" process to deny waivers to nearly every immigrant coming from five Muslim-majority nations under President Donald Trump's travel ban.
"A citizen has the right to say the government is putting up a sham policy," U.S. District Judge James Donato said during a motion-to-dismiss hearing.
Thirty-six plaintiffs filed a class action against the Trump administration in March, claiming the government failed to create proper guidelines and procedures for reviewing travel ban waiver requests as required by law.
According to the suit, the 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.
According to data cited in the lawsuit, the State Department granted only two waivers for 6,500 applicants as of Jan. 8, 2018. In March, the State Department said it had granted 100 waivers, but the rejection rate remained higher than 98 percent.
Despite those statistics, a U.S. government lawyer argued in court Thursday that the lawsuit should be thrown out because courts lack the power to review case-by-case visa determinations.
"They are envisioning a kind of micromanagement of those consular decisions," Justice Department attorney August Flentje said.
Donato disagreed, noting that the lawsuit alleges a "sham" policy and guidelines that create the illusion of fairness while giving the government cover to reject nearly every waiver request.
"I don't see why I'd have to look at any specific waiver decisions," Donato said.
To obtain a waiver, applicants must show they do not pose a national security threat, that a waiver denial would cause "undue hardship," and that their entry into the U.S. would "be in the national interest."
According to the lawsuit, several plaintiffs submitted documents showing they meet the requirements, including scientists with special expertise whose research at U.S. universities would "be in the national interest." But the government rejected all of their waiver requests.
Class attorney Sirine Shebaya of the Washington, D.C.-based group Muslim Advocates said the government has failed to make clear how one can apply for a waiver, submit supporting documentation and prove that one meets the requirements.
"They haven't given you any clue about what the [eligibility criteria] definitions are, but it's your burden to show that you meet those definitions," Shebaya said.
Flentje countered the U.S. does follow clear guidelines for meeting the requirements, but some of those guidelines are hidden from the public for national security reasons.
"The [presidential] proclamation for issuing guidance doesn't say it's all outward facing, and a lot would need to be confidential to avoid manipulation of the process," Flentje said.
Trump's third version of the travel ban was introduced in September 2017 and upheld by the Supreme Court in a 5-4 vote in June.
On Thursday, Donato cited Justice Stephen Breyer's dissent in that decision, which focused on whether the waiver program is being administered as stated in the president's proclamation.
Breyer noted that if the government was not granting waivers to those that meet the three requirements, then arguments in favor of the travel ban would be "significantly weaker."
"Denying visas to Muslims who meet the proclamation’s own security terms would support the view that the government excludes them for reasons based upon their religion," Breyer wrote in an 8-page dissent.
Donato recalled a footnote in Chief Justice John Roberts' opinion upholding the travel ban, which cited a lack of evidence to support Breyer's concern that the government was categorically denying waiver requests.
"Frankly, he's skeptical that it's a sham, but we have to see the evidence," Donato said. "Why isn't that the case here? Why shouldn't this go to an evidentiary hearing?"
Before ending the hearing, Donato said he would issue a written ruling "fairly soon," and that he will let the plaintiffs amend their complaint if any claims are dismissed.
After the hearing, opponents of the travel ban gathered outside the courthouse. Farhana Khera, executive director of Muslim Advocates, encouraged people to contact their congressional representatives and urge them to use their oversight powers to investigate the travel ban waiver system.
Countries subject to the travel ban include Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen.
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