Sen. Van Hollen, Reps. Carson, Moulton Lead Bicameral Letter Seeking Answers on Trump Travel Ban

Today, U.S. Senator Chris Van Hollen (D-MD) and U.S. Representatives André Carson (D-IN-7) and Seth Moulton (D-MA-6) led a letter to Secretary of State Mike Pompeo and Secretary of Homeland Security Kirstjen Nielsen pressing the two Departments for more information on the implementation of President Trump’s travel ban.

The Members write, “Despite repeated requests from the Congress, the Administration has not been forthcoming with Members of Congress or the American people about the implementation of PP9645 [the travel ban]. Specifically, the Administration has not clarified the process by which the State Department determines whether or not an applicant is eligible to be considered for a waiver.”

They continue, “Furthermore, the Administration has not made clear how many visas it has issued to individuals granted waivers. In a letter to Senators Van Hollen, Murphy, and Blumenthal on June 22, the State Department stated it had cleared 768 applicants for waivers as of May 31, but the Department has declined to provide information on how many “cleared” applicants have actually received visas and extensive public reporting indicates that the number is very low.”

The Members also cite a recent report from Slate, that in a sworn affidavit a U.S. consular officer described a process that effectively prevented all applicants from being considered eligible. The Members write, “Given this, we have serious concerns that the waiver process continues to be implemented unevenly and with little guidance—and that waivers granted through the process are not leading to the issuance of visas for cleared individuals.” They conclude the letter pressing the Departments to provide answers to several questions, including: the number of visa applications received and processed, the number of waivers granted, guidance the Departments have given to embassies and consulates, and steps the administration has taken to publicized information on the process.

The Members’ letter is supported by the American Civil Liberties Union, National Immigration Law Center, and American Immigration Lawyers Association.

Congress, led by Senator Van Hollen, has continued to demand answers from the Departments of State and Homeland Security on the travel ban. In response to their most recent letter, the State Department provided statistics demonstrating that less than 2 percent of visa applicants from banned countries were cleared for waivers, though the State Department did not specify how many actually received waivers. Additionally, the Senate Appropriations Committee passed – on a bipartisan basis – Senator Van Hollen’s amendment to the Fiscal Year 2019 State, Foreign Operations, and Related Programs Appropriations Act that would ensure that the public has regular access to information on President Trump’s travel ban, including the number of visa waivers granted to citizens of the banned countries.

In the Senate, in addition to Senator Van Hollen, the letter was also signed by Senators Edward Markey (D-MA), Richard Blumenthal (D-CT), Kirsten Gillibrand (D-NY), Jeanne Shaheen (D-NH), Cory A. Booker (D-NJ), Jeff Merkley (D-OR), Mazie K. Hirono (D-HI), Tammy Duckworth (D-IL), Elizabeth Warren (D-MA), Ron Wyden (D-OR), Patrick Leahy (D-VT), Kamala D. Harris (D-CA), Patty Murray (D-WA), and Chris Coons (D-DE).

In the House, in addition to Representatives André Carson and Seth Moulton, the letter was also signed by Representatives Karen Bass (D-CA-37), Don Beyer (D-VA-8), Earl Blumenauer (D-OR-3), Judy Chu (D-CA-27), Yvette D. Clarke (D-NY-9), Rosa L. DeLauro (D-CT-3), Debbie Dingell (D-MI-12), Keith Ellison (D-MN-5), Colleen Hanabusa (D-HI-1), Henry C. “Hank” Johnson Jr. (D-GA-4), Joseph P. Kennedy III (D-MA-4), Ro Khanna (D-CA-17), Zoe Lofgren (D-CA-19), James P. McGovern (D-MA-3), Grace Meng (D-NY-6), Gwen Moore (D-WI-4), Jerrold Nadler (D-NY-10), Richard E. Neal (D-MA-1), Eleanor Holmes Norton (D-Washington DC), Robert Francis “Beto” O’Rourke (D-TX-16), Frank Joseph Pallone Jr. (D-NJ-3), Chellie Pingree (D-ME-1), Mark William Pocan (D-WI-2), Jamin Ben “Jamie” Raskin (D-MD-8), Janice Danoff Schakowsky (D-IL-9), Albio B. Sires (D-NJ-8), and Peter J. Visclosky (D-IN-1).

The full text of the letter is available here and below:

Dear Secretaries Pompeo and Nielsen:

We write to request further information on the administration’s implementation of Presidential Proclamation 9645 (PP 9645), Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.

Section 3(c) of PP 9645 authorizes waivers for foreign nationals for whom entry to the United States is limited or suspended. Waivers are to be granted if the foreign national meets criteria, including: (1) when a waiver is “in the national interest,” (2) when “denying entry would cause undue hardship,” and (3) when entry does “not pose a threat to the national security or public safety of the United States.” The Secretaries of State and Homeland Security are directed to “adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.”

Despite repeated requests from the Congress, the Administration has not been forthcoming with Members of Congress or the American people about the implementation of PP9645. Specifically, the Administration has not clarified the process by which the State Department determines whether or not an applicant is eligible to be considered for a waiver.

Furthermore, the Administration has not made clear how many visas it has issued to individuals granted waivers. In a letter to Senators Van Hollen, Murphy, and Blumenthal on June 22, the State Department stated it had cleared 768 applicants for waivers as of May 31, but the Department has declined to provide information on how many “cleared” applicants have actually received visas and extensive public reporting indicates that the number is very low.[1] Likewise, a State Department official told Public Radio International in August that “as of July 31, 2018, 1,246 applicants from the banned countries were cleared for waivers,” but “would not provide a total number of people who had applied for a visa from the banned countries during that period, or the number of applicants who were granted a waiver and a visa, as opposed to those who were cleared for them.”[2]

Additionally, a report from Slate on June 15 quoted the sworn affidavit of a consular officer who resigned in March. In the affidavit, the officer stated:

“They gave us a list of things and we would go down the list one by one until we were able to determine at all possible cost that the person was not eligible to even apply for the waiver. My understanding was no one is to be eligible to apply. … If for some reason an applicant made it through the list and we had no choice but to determine we could find an applicant eligible to apply, regardless of the [Presidential Proclamation] instructions that we had ‘discretion to grant the waiver,’ we were not allowed to exercise that discretion. We were mandated to send to Washington that we found this applicant eligible to apply and Washington would then make the decision to grant or deny the waiver.”[3]

Given this, we have serious concerns that the waiver process continues to be implemented unevenly and with little guidance—and that waivers granted through the process are not leading to the issuance of visas for cleared individuals. As a result, we request the following additional information that we hope will shed light on the Administration’s progress in implementing the waiver process by October 25, 2018:

1.       The number of visa applications received and processed from countries affected by PP 9645 as of October 11, 2018, including:

a.       The total number of applications for nonimmigrant and immigrant visas for each of the identified countries

b.       The number of applicants refused for reasons unrelated to the proclamation for each of the identified countries, disaggregated by basis for refusal

c.       The number of applicants qualifying for an exception for each of the identified countries, disaggregated by basis for the exception

d.       The number of applicants who failed to meet the criteria for a waiver for each of the identified countries, disaggregated by basis for denial

e.       The number of applicants refused under the proclamation with waiver consideration for each of the identified countries, disaggregated by basis for refusal

f.        The number of waivers approved for each of the identified countries, disaggregated by basis for approval

g.       The number of visas issued to individuals granted waivers for each of the identified countries, disaggregated by basis for approval

h.       The average number of days between waiver approval notice for each of the identified countries, disaggregated by basis for approval, and visa issuance.

2.       The number of waivers granted to diversity visa winners from each of the identified countries and the number of visas issued to those individuals.

3.       Any guidance or other documents provided to embassies and consulates regarding PP9645 and waiver criteria, including 17 STATE 97682 and 17 STATE 56801.

4.       Did the Secretary of Homeland Security perform the required 180-day review of the listed countries in consultation with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies?

a.       If so, what findings or conclusions were reported to the President? 

b.       What was communicated to the governments of the affected countries regarding their information sharing and/or security deficiencies as a result of the review and reporting process?

5.       What steps is the administration taking to publicize information regarding the waiver application process?

a.       Have embassies and consulates been instructed to post information regarding application and appeal procedures for waivers on their public websites?

b.       Have embassy and consular staff conduct outreach to visa applicants from countries listed under Section 2 of PP 9645 regarding the application and appeal process for waivers?

6.       After a denial, is an applicant’s file held at the embassy or consulate or returned to the National Visa Center?

7.       How does the Department of State adjudicate the “undue hardship” standard without accepting evidence? What is the basis in law for the “undue hardship” standard?

Sincerely,