Federal Judge in S.F. Allows Challenge to Travel Ban Visa Waiver Program to Proceed

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Lawyers Sirine Shebaya (left) and Esther Sung (right) take questions outside the federal courthouse in San Francisco. The lawyers are representing plaintiffs in a pair of class action lawsuits accusing the U.S. government of opaque processes for visa applicants from Muslim-majority countries seeking residency under the waiver program. (Chloe Veltman/KQED)

A federal judge in San Francisco Thursday allowed a pair of cases to move ahead that challenge the U.S. government’s approach to issuing visa waivers under the Trump administration's travel ban on citizens of several Muslim-majority countries.

Visa applicants from countries like Syria and Iran say the U.S. government’s decisions — including many denials — are taking place in a black hole, with long delays and little transparency.

"To me, it seems like the waiver is just not really there," Fereshteh Abbasi said. "Or if it's there, it's so inefficient."

Abbasi, an Iranian national, attended the hearing Thursday to show her solidarity with the plaintiffs in the cases.

She was outside of the United States when the travel ban went into effect and endured a grueling, two-year wait before she was allowed to return to her American husband.


"We kept emailing, and we'd get one sentence backing saying, 'your application is going through administrative processing. We cannot anticipate how long it will take,' " Abbasi said.

It took several thousand dollars in lawyers' fees and the involvement of the couple's congressman, before they were reunited, Abbasi said.

Lawyers for the plaintiffs in the two cases — Emami v. Nielsen and Pars Equality Center v. Pompeo — say the U.S. government has failed to provide adequate information clarifying its processes for issuing or denying visas to the roughly 50,000 applicants from banned Muslim-majority countries who are attempting to obtain the right to visit the U.S. under the waiver program.

Around 6% of these applicants have been cleared for visas.

"It's a capricious process; it's an arbitrary process," said Esther Sung, a lawyer from the National Immigration Law Center representing plaintiffs in the Pars Equality Center case.

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The so-called travel ban bars entry to the United States for most citizens of several majority Muslim countries — Iran, Libya, Somalia, Syria and Yemen — as well as citizens of North Korea and some Venezuelan government officials and their family members. The 2017 presidential proclamation was upheld by the U.S. Supreme Court last year, after two previous attempts at a similar ban were struck down by the courts.

At the hearing Thursday, U.S. District Judge James Donato allowed the plaintiffs' lawyers to go ahead and outline what information they need from the U.S. government in order to pursue their cases, thus rejecting a move by federal lawyers to have the cases thrown out.

Speaking outside the courthouse after the hearing, Sirine Shebaya, a Muslim Advocates lawyer representing plaintiffs in the Emami v. Nielsen case, said it's hard to predict how long these types of cases might take to reach a resolution.

"It could take anywhere from six months to a year to get fully resolved," Shebaya said. "In the meantime, we are able to continue holding the government accountable, so that there is transparency and an ability to see behind the veil that they've been using to shield this process from view."

The Department of Justice lawyer representing the government at the courthouse, August Flentje, told KQED he did not wish to comment on the hearing.

The judge said he plans to issue a decision in September about how much information federal officials must provide to the plaintiffs.