By: Shabnam Lotfi - Published on March 13th, 2018
For Immediate Release, March 13, 2018
Contact: Shabnam Lotfi, info@lotfilegal.com
The Government’s Blanket Denial of Visas Violates the APA, the INA, and Fifth Amendment
SAN FRANCISCO— Attorneys Shabnam Lotfi and Veronica Sustic, of Lotfi Legal LLC, an immigration firm based in Madison, Wisconsin, filed a class action lawsuit in federal court today over the Trump Administration’s travel ban practices. The proposed class includes U.S. citizens, U.S. lawful permanent residents, and citizens of the Muslim-majority countries who are subject to the travel ban and whose visa applications were denied; many are seeking to be reunited with family members, and many are educated and looking to continue their professional paths in the U.S. Defendants include President Donald Trump, Attorney General Jeff Sessions, Secretary of Homeland Security Kirstjen Nielsen, Secretary of State Rex Tillerson, Acting Director of National Intelligence Dan Coats, and the various agencies they head.
In 2017, President Donald J. Trump attempted to institute three travel bans via executive order and presidential proclamation. Each ban applied mostly to Muslim-majority countries. Federal courts have already found the first two executive orders unlawful. The constitutionality of the third travel ban is currently being litigated at the U.S. Supreme Court. But on December 4, 2017, the Supreme Court decided to allow the Administration to execute the third travel ban while the case was heard on its merits.
Plaintiffs allege that Defendants’ implementation of that interim-permitted travel ban has violated the Administrative Procedure Act (APA), the Immigration and Nationality Act (INA), and the Plaintiffs’ right to due process under the Fifth Amendment to the U.S. Constitution.
Specifically, at issue in this suit is Section 3 of Trump’s third travel ban, which allows for case-by-case waivers under a non-exclusive list of circumstances for visa applicants from the banned countries. To qualify for a waiver, an applicant must prove that: (1) a denial of entry “would cause the foreign national undue hardship”; (2) his or her “entry would not pose a threat to the national security or public safety of the United States”; and (3) his or her “entry would be in the national interest.” Defendants have refused to consider such waivers and have instead issued blanket denials of visas, regardless of personal circumstances and without giving applicants the opportunity to argue their cases, thereby violating the APA, the INA, and Plaintiffs’ right to Fifth Amendment due process.
The State Department has revealed that, as of March 6, 2018, only about a hundred waivers had been granted out of thousands of visa applicants from the banned countries, with a rejection rate of more than 98%.
Attorney Sustic explained, “The government has insisted that the waiver process acts as a safety valve on the travel ban to make sure that deserving people can still get through. The Supreme Court stayed the lower courts’ decisions striking down the travel ban with the understanding that the government was looking at people’s individual circumstances on a case-by-case basis. The Court did not give the government a green light to reject nearly every applicant.”
In light of the government’s practices, Plaintiffs are asking the court to retract past and cease future visa denials pursuant to Trump’s Proclamation. They assert that such intervention is needed to prevent ongoing and future harm to affected applicants and to protect the integrity of the U.S. visa process. Plaintiffs have suffered significant and irreparable harm, including both opportunity and actual costs.
“The government’s conduct has been reckless. It has had an entire year to figure out how to implement the travel ban and come up with a waiver process, and it has utterly failed,” said Attorney Lotfi, lead Plaintiffs’ counsel in the case. “This case does not need convincing. The Trump Administration’s practices constitute an all-out travel ban.”
Lotfi continued, “We cannot afford to wait for the Supreme Court to rule on the travel ban, because the harm is immediate. People are suffering every day. They need their voices heard now and we intend to make that happen.”
Lotfi Legal LLC is co-counseling with Luis Cortes Romero and Alma David of Immigrant Advocacy & Litigation Center, PLLC and Mark Rosenbaum and Judy London of Public Counsel.