April 10, 2019 Comments are off NIAC Staff
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Memo: A Snapshot of Visas and Waivers Over One Year of the Muslim Ban

Lack of information on the implementation of the Muslim Ban has served as one of the greatest impediments to challenging it. January 27, 2019 marked two years since the Muslim Ban first went into effect as Executive Order 13769. It was repackaged as Executive Order 13780, signed on March 6, 2017, and finally Presidential Proclamation 9645, issued on September 24, 2017. Last week, the State Department finally delivered statistics on the Muslim Ban to Senator Van Hollen thanks to his tireless efforts to seek answers. Below are some key findings based on the statistics released:

Iranians Only Granted Waivers in 1.6% of Cases

  • Between December 8, 2017 and October 31, 2018:
    • 19,163 Iranians rejected under ‘undue hardship’ or ‘national interest’ criteria.
    • 5,978 languished in administrative processing for the national security element of the waiver process.
    • Iranians represent 21,089 out of 31,304 total nonimmigrant visas and 8,545 out of 17,352 total immigrant visas subject to ban during this period.
    • Of those rejected for a waiver for failure to prove undue hardship or national interest criteria, Iranians represent 77% of rejections. 19,163 out of 24,584 total.
    • Only 413 met the conditions for a waiver. This is an abysmally low 1.6%.
    • In other words, for every one Iranian who qualified for a waiver, 46 were rejected.
    • Not all of those who qualified for a waiver received a visa. For every 71 applicants, only 1 Iranian was issued a visa.

Iranian Students Exempted But Still Impacted

  • All Iranian immigrant visa applicants were subject to the ban, however it makes an exception for Iranian nationals under valid student (F and M) and exchange visitor (J) visas. Out of 25,752 Iranian nonimmigrant visa applicants, 21,089 were subject to the Muslim Ban and 4,663 were exempted under F, M, and J visas.
  • However, State Department statistics that are released monthly show that only 2,160 F, M, and J visas were actually issued during this period. Numerous students who previously received visas were unable to renew them and complete their studies. For some perspective, in 2015, there were 4,944 F, M, and J visas issued to Iranian nationals according to the State Department’s annual statistics. This is an approximately 56% drop.

Numbers Reveal that the Ban is Still a Muslim Ban Despite the Addition of Venezuela and North Korea

  • Venezuela was added to Proclamation 9645 (Muslim Ban 3.0) in an embarrassingly transparent effort by the Trump administration to distract from the Islamophobic nature of the ban. However, the Venezuelan ban only applies to B-1/B-2 visas and only to officials of select government agencies such as the Bolivarian National Intelligence Service. Thus the addition of Venezuela was meaningless and the newly released numbers reflect as much:
    • Out of 3,093 Venezuelan immigrant visa applicants and 87,573 nonimmigrant visa applicants not a single one was subject to the ban.
  • Visas are suspended for all North Korean nationals but due to the nature of U.S.-North Korean relations this has only impacted 62 visa applicants compared to tens of thousands from other countries.
December 20, 2018 Comments are off NIAC Staff
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Iranian Americans Call on Incoming House Oversight and Judiciary Committees to Hold Immediate Hearings on Trump’s Muslim Ban

FOR IMMEDIATE RELEASE: Thursday, December 20, 2018
CONTACT: Jordan Wilhelmi | jordan@unbendablemedia.com | 612.281.2310

Washington, DC—The National Iranian American Council (NIAC), along with 118 other national and state organizations, has issued an open letter to the incoming chairpersons of the House Committee on Oversight and the House Judiciary Committee, Rep. Jerrold Nadler (D-NY) and Rep. Elijah Cummings (D-MD), calling for urgent hearings on Executive Order 13769, Executive Order 13780, and Presidential Proclamation 9645 – collectively known as the “Muslim Ban” – to address the waiver program, number of individuals impacted by the ban, and detrimental effect on United States citizens.

READ THE FULL TEXT OF THE OPEN LETTER HERE: https://www.niacouncil.org/organizations-send-letter-to-house/

The organizations argue it is incumbent on lawmakers to formally and publicly question the relevant administration officials on the basis of their perceived threat assessment and to explore these discriminatory policies and their impact on people in the US and abroad, including the repercussions of the stigmatization of Muslims and its role in the reputation of the US across the globe.

The letter comes after an outpouring of concern from the millions of members in the Muslim and Iranian-American community, represented by these organizations, who have been directly impacted, have had family members directly impacted, or are deeply disturbed by the intent and consequences of President Trump’s Muslim Ban.

Jamal Abdi, President of the National Iranian American Council, explained:

“As we approach the two-year anniversary of the Muslim Ban, Congress has yet to hold a single hearing focused on Proclamation 9645, or any of its previous versions, despite the introduction of legislation to end the ban. This unjust law has torn apart families, separated spouses, and extinguished dreams as President Trump’s allies in Congress stayed silent. Now, with a new Congress entering office, we can finally place a check on this presidency, beginning with repealing this un-American ban on our families.

“The Muslim Ban’s origins, numerous statements by President Trump, and the implementation of these and other policies impacting targeted communities make clear this administration’s desire to implement a discriminatory policy as a part of a nationalist agenda.”

# # #

 

December 20, 2018 Comments are off NIAC Staff
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NIAC and 117 other Organizations Call for Incoming Congress to Hold Hearings on Muslim Ban

Washington, D.C. – Today, NIAC sent a sign-on letter supported by 117 other organizations – including the American Civil Liberties Union (ACLU), National Immigration Law Center (NILC), Oxfam, MoveOn, and Council on American-Islamic Relations (CAIR) – calling on the House Judiciary and Oversight Committees to hold Congressional hearings and conduct rigorous oversight on the Muslim Ban.

With the signing organizations representing tens of millions of Americans, this is the largest statement to date in favor of Congress ensuring stringent oversight over the ban. See the full text of the letter below:

Letter Requesting Muslim Ban Hearings Dec. 20

June 27, 2018 Comments are off NIAC Staff
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Analyzing the Supreme Court Decision on Trump’s Muslim Ban

The Supreme Court’s Muslim Ban opinion can be divided into three parts: (1) the majority opinion, also known as the opinion of the Court; (2) concurring opinions that support the opinion of the Court but wish to expand upon it; and (3) the dissenting opinions that disagree with the opinion of the Court. The opinion of the Court was delivered by Justice Roberts and joined by Justices Kennedy, Thomas, Alito, and Gorsuch to uphold the latest iteration of the Muslim Ban. This means that the case returns to the lower court for additional litigation but the Muslim Ban will remain in effect for the foreseeable future. The summary below is intended to provide a basic outline of the decision for a reader unfamiliar with law and some of the Court’s more complex arguments have been simplified for clarity.

  • Summary of the Majority Opinion:  It is within President Trump’s discretion to suspend the entry of aliens to the US if he determines their entry would be detrimental to US interests or if the policy is plausibly related to the Government’s stated objective which in this case is to protect the country’s national security. Therefore, Proclamation 9645 is lawful.
    • The President has broad discretion under the Immigration and Nationality Act (INA) to suspend the entry of aliens into the US. The INA §1182(f) gives the President “ample power” to restrict entry of aliens if their entry “would be detrimental to the interests of the United States.”
    • The President is also not required to provide an end date for his suspension of entry and the existing vetting procedures do not address the failure of particular high-risk countries to provide reliable information.
    • The INA distinguishes between admissibility, i.e. general eligibility to receive a visa, and allocation of immigrant visas. It is forbidden to discriminate based on nationality in the case of visa issuances but the President is permitted to restrict eligibility in the first place on the basis of nationality.
    • When the Court strikes down a policy under rational-basis scrutiny it looks to see if the policy is divorced from any factual basis and this is not the case for the Proclamation because the Muslim-majority countries included in it were previously designated and a worldwide review process was undertaken by the Trump administration.
    • The majority addressed the dissent’s reference to Korematsu v. United States, a Supreme Court case from 1944 that upheld the policy of placing Japanese Americans in internment camps, and determined that the set of facts between the two cases are entirely different. However, the Court took the opportunity to formally reject the Korematsu decision.
  • Summary of Dissenting Opinions: Proclamation 9645 should fail the rational-basis scrutiny test because it is not rooted in facts and there is an extensive record of anti-Muslim animus among President Trump and others in his administration involved in the implementation of the Muslim Ban. Additionally, publicly available information suggests that the waiver process has not been applied adequately which further places the intent of the Muslim Ban into question because a significant number of individuals who do not pose a national security risk to the US should qualify for a waiver. Lastly, the record itself does not indicate that there is any evidence that the Muslim Ban was designed based on national security concerns.
    • The dissent written by Justice Breyer and joined by Justice Kagan rejects the majority opinion that Proclamation 9645 was not significantly affected by animus against Muslims. It places significant emphasis on whether the waiver provision of the ban is being implemented fairly and Justice Breyer writes “How could the Government successfully claim that the Proclamation rests on security needs if it is excluding Muslims who satisfy the Proclamation’s own terms? At the same time, 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.” Justice Breyer expressed serious concern that the waiver provision is not being applied adequately both due to the lack of guidance provided to consular offices and based on publicly available information that shows low waiver issuances and dwindling visas even for categories that are permitted under the ban such as student visas.
    • Justice Sotomayor wrote a separate dissent and was joined by Justice Ginsburg. It opens by asserting that “based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.” The Establishment Clause of the Constitution forbids the government from favoring or disfavoring any one religion. Justice Sotomayor argued that the background of the ban is enough to convince a reasonable observer that it was enacted for the purpose of disfavoring Muslims. She accused the majority of downplaying the full record of President Trump’s hostility toward Muslims to simply gloss over a few of his most egregious anti-Muslim statements and then fail to address them in its analysis. The dissent questions the majority’s use of rational-basis scrutiny as a standard of review rather than heightened scrutiny which it argues should be applied in the case of a policy involving discrimination on the basis of religion.
    • Justice Sotomayor contends, however, that even under rational-basis scrutiny, the Muslim Ban is unconstitutional because it is divorced from any factual context that could discern a relationship to a legitimate state interest. She asserts that the worldwide review process was conducted by officials who themselves have expressed hostility toward Muslims and the inclusion of North Korea and Venezuela in the ban was intended “precisely so the Executive Branch could evade criticism or legal consequences for the Proclamation’s otherwise clear targeting of Muslims.” Furthermore, former high-ranking national security officials have indicated that the ban does not enhance the security of the US and Congress has already erected a statutory scheme that adequately protects national security interests.
June 27, 2018 Comments are off NIAC Staff
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What You Need to Know about Trump’s Muslim Ban After SCOTUS

This Question & Answers page is designed to answer your questions in regard to Trump’s Muslim Ban 3.0 after the Supreme Court’s decision to uphold it on June 26th.

What has changed?

Unfortunately, not much. If you were impacted by the Muslim Ban last week then you are still impacted by it today. What has changed is how we are fighting the Muslim Ban. We have always focused on a dual strategy of legal challenges and legislative initiatives. That is why our sister organization, NIAC Action, will double-down with other allied organizations to lay the groundwork for legislative repeal of the Muslim Ban. We will win this fight but until that happens we will continue to provide you with guidance on the ban.

Who is still affected by the ban?

The issuance of immigrant visas (including “green card lottery” diversity visas) to nationals of Iran, Libya, Somalia, Syria, Yemen, and North Korea is suspended indefinitely. Permanent residence applications are not being processed for the listed countries. This means no immigrant visas will be issued or processed. The entry of nonimmigrants from Iran is also suspended, with the exception of student visa holders (F and M visas), or exchange visitor visas (J visas). B-1/B-2 nonimmigrant visas are suspended for nationals of Libya and Yemen. Certain Venezuelan government officials and their families are also barred from entry on B-1/B-2 visas.  No nonimmigrant visas will be issued to Syrians or North Koreans. Somalis are subject to additional scrutiny but remain eligible for nonimmigrant visas.

Who is not affected by the ban?

The ban does not apply to individuals from the included countries who have been granted asylum or are already admitted as refugees inside the US.

Iranians on F, M, and J visas should be subjected to standard visa issuance procedures and not affected by the Muslim Ban.

Certain nonimmigrants from Libya (except B-1/B-2 visas), Yemen (except B-1/B-2 visas) and Venezuela (except certain government officials and their families) will be permitted to enter.  

The suspension of entry will not apply to travelers with other travel documents such as a transportation letter or advance parole document.

Section 3 of the Proclamation allows for case-by-case waivers for individuals otherwise barred from entry when the following conditions are met:

  1. A foreign national demonstrates undue hardship.
  2. Their entry would not pose a threat to national security or public safety.
  3. Their entry is in the national interest.

In practice it remains unclear what particular cases actually qualify for a waiver and the issuance of one is highly unpredictable. More information is provided in the section on waivers.

If I have a multiple-entry visa can I travel outside the U.S. and return?

This is by far one of the most common questions that U.S. visa-holders from the countries included in the Muslim Ban ask. The short answer is “yes” but do so with caution. For example, if you have a valid multiple-entry F1 visa then you can travel outside of the U.S. and return. We have heard of Iranian students with multiple-entry F1 visas who visited Iran since Muslim Ban 3.0 took effect and then returned to their studies in the U.S. without any issues. However, it is important to remember that U.S. Customs and Border Patrol agents can deny you entry to the U.S. even if you have a valid visa. There is always a risk of being turned away at the border and this risk existed prior to the Muslim Ban but appears to have risen slightly.

If I have a multiple-entry student visa, what do I need to travel outside the U.S. and return?

Since the vast majority of individuals who ask this question hold student visas, the next question will address what an F1 multiple-entry visa holder needs to travel outside the U.S. and return.

  • Valid passport with 6 months left before expiration with a valid multiple-entry visa stamped in it.
  • Valid I-20 with a signature from your ISO advisor on page 2 that is less than one year old.
  • Proof of financial support (e.g., award letters, bank statements).
  • Proof of university enrollment (e.g., admission letter, university ID, class registration).
  • Form I-901.
  • Check with your international student services for their list of recommended documents before departing as this list is subject to change.

It is best to bring as much documentation as possible. Additionally, while it is unnecessary to document your reason for travel, it always helps to be able to provide proof where possible (e.g., a wedding invitation) in case you are subjected to secondary screening.

Did the Supreme Court clarify the waiver process?

No. One dissenting opinion, i.e., the opinion of a judge who disagreed with the majority ruling, argues that the available evidence suggests that the waiver process is a sham as so few are granted. This depiction is backed up by the testimonials of consular officers, who have described the waiver process as a “fraud.” As letters responding to Sen. Van Hollen’s queries have clarified, very few waivers have been granted – less than 2% of applicants from Muslim-majority countries under the ban received a waiver, almost all of which were granted after Congress requested information from the administration.

Section 3 of the Proclamation allows for case-by-case waivers for individuals otherwise barred from entry when the foreign national demonstrates (1) undue hardship, (2) that their entry would not pose a threat to national security, and (3) that their entry is in the national interest. It remains unclear what circumstances satisfy these criteria but a medical emergency of a close family member is one situation that could hypothetically qualify for a waiver. Some individuals with fiances and spouses who have been impacted by the Muslim Ban have incorrectly presumed that a close relationship with a US person on its own satisfies the waiver standard. This does not appear to be the case. NIAC Action will continue to challenge this in Congress. For now, we recommend that anyone who believes they have a compelling case for a waiver continue to apply for a visa. Individuals in the US can also ask their legislators to check in with the administration on individual visa applications, which could help secure a waiver for family members of friends.

Is this permanent? Will banned classes of Iranians never be able to come as a result of this Ban?

Muslim Ban 3.0 does not have a set expiration date and the Supreme Court decision held that “the President is not required to prescribe in advance a fixed end date for the entry restriction.” We are confident that we will eventually defeat the Muslim Ban and “extreme vetting” procedures legislatively. This will be done through NIAC Action’s support of political candidates who are dedicated to rescinding the ban, keeping the issue in the spotlight, and working with partner organizations and allied lawmakers on a legislative solution.

Will Green Card holders be affected?

Under the terms of the proclamation, entry suspensions will not apply to lawful permanent residents of the United States, commonly referred to as LPR’s or Green Card holders. However, green card applications are not being processed.

How does Muslim Ban 3.0 affect dual nationals?

Dual nationals who are traveling on a passport issued by a country other than the eight covered countries will not be affected. So if you are a citizen of an EU country, for example, and also hold an Iranian passport, as long as you are entering the US on a passport issued by the EU country you will not be affected by the proclamation. However, nationals of the seven banned countries under Muslim Ban 3.0 will still need a valid F, M, or J visa. Dual Iranian nationals with visas issued prior to October 18, 2017 will not have their visas revoked, but it remains to be seen whether they will be permitted to enter the United States, as the language of the proclamation is unclear on this point.

June 26, 2018 Comments are off NIAC Staff
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MEDIA AVAILABILITY: Experts Available to Discuss Trump’s Muslim Ban

FOR IMMEDIATE RELEASE

Contact: Jamal Abdi, Vice President of Policy – 202.386.6408, jabdi@niacouncil.org

Trita Parsi, President – 202.386.6325, tparsi@niacouncil.org

Mahsa Payesteh, Outreach Director – 214.236.4440, mpayesteh@niacouncil.org

Ryan Costello, Assistant Policy Director – 703.963.1901, rcostello@niacouncil.org

Adam Weinstein, Policy Associate – 202.386.6319, aweinstein@niacouncil.org

Experts from the National Iranian American Council are available to discuss the Supreme Court’s outrageous decision to uphold Donald Trump’s Muslim ban and the necessity for Congress to take action to end the ban once and for all.

Iranians and their Iranian-American families in the U.S. have been the group most impacted by the ban. Families have been ripped apart with no end in sight and students have been unable to pursue their dreams. The Iranian-American community has been praised by the Trump White House as one of the most successful immigrant communities in the United States, yet will be barred on a permanent basis because of Trump’s ban and the Supreme Court’s morally hollow decision.

The following experts are available to discuss this dark day for American justice:

Jamal Abdi is Vice President for Policy for the National Iranian American Council (NIAC) and the Executive Director of NIAC Action. He leads NIAC’s advocacy and education on civil rights and immigration issues, as well as diplomacy with Iran. He formerly served as Policy Advisor on foreign affairs, immigration, and defense issues in the U.S. Congress. Abdi has written for The New York Times, CNN, Foreign Policy, and blogs at The Huffington Post.  He is a frequent guest contributor in print, radio, and television, including appearances on Al Jazeera, NPR, and BBC News. Follow Jamal on Twitter: @jabdi

Trita Parsi, is the 2010 recipient of the Grawemeyer Award for Ideas Improving World Order. He is the founder and president of the National Iranian American Council and an expert on civil rights and US-Iranian relations. He is the author of Treacherous Alliance: The Secret Dealings of Iran, Israel and the United States (Yale University Press 2007) and A Single Roll of the Dice – Obama’s Diplomacy with Iran (Yale University Press 2012).

Parsi’s articles have been published in the Wall Street Journal, New York Times, Los Angeles Times, Financial Times, Jane’s Intelligence Review, the Nation,The American Conservative, the Jerusalem Post, The Forward, and others. He is a frequent guest on CNN, PBS’s Newshour with Jim Lehrer, NPR, the BBC, and Al Jazeera. Follow Trita on Twitter: @tparsi

Mahsa Payesteh joined the National Iranian American Council as a Community Outreach Associate in January 2015 and works to empower and organize Iranian Americans to have a strong voice on the political issues that matter most to them.

Mahsa studied Psychology at The University of Texas at Dallas. She formerly worked as a Physical Therapy Assistant in Dallas, TX. Mahsa served as a volunteer NIAC Ambassador in Dallas for two years. She has always felt a strong connection to her Iranian heritage and has had a special interest in issues affecting the Iranian people. Following her experience volunteering at the 2014 Leadership Conference, Mahsa consequently decided to pursue a more active and permanent role with NIAC.

Ryan Costello joined NIAC in April 2013 as a Policy Fellow and now serves as Assistant Policy Director. In this role, Ryan monitors legislation, conducts research and writing, and coordinates advocacy efforts on civil rights and U.S.-Iran policy.

Ryan previously served as a Program Associate at the Connect U.S. Fund, where he focused on nuclear non-proliferation policy. He has published in American Foreign Policy Interests, the Bulletin of the Atomic Scientists, CNN GPS, Foreign Policy, The Hill, Huffington Post and Roll Call. Ryan graduated from American University’s School of International Service with a Master of Arts in U.S. Foreign Policy, and from Ursinus College where he majored in history and international relations. Follow Ryan on Twitter: @RN_Costello

Adam Weinstein joined the National Iranian American Council as a Policy Associate in April 2017. In this role, Adam monitors legislation, policy briefs, and legal cases, conducts research and writing, and supports advocacy efforts. He focuses on national security, diplomacy, immigration and civil rights issues.

Adam served in the U.S. Marine Corps and was deployed to Afghanistan. He received his J.D. from Temple University in Philadelphia, where he focused on international law, national security law, and immigration law. He graduated from the University of Miami with a B.A. in International Relations.

Adam has written for Foreign Policy, CNN, The Diplomat, Newsweek, Haaretz, the Atlantic Council’s Iran Insight, the London School of Economics Middle East Centre and South Asia Centre, and the Huffington Post.

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About NIAC: The National Iranian American Council is a nonpartisan, nonprofit organization dedicated to strengthening the voice of Iranian Americans and promoting greater understanding between the American and Iranian people. We accomplish our mission through expert research and analysis, civic and policy education, and community building.

June 26, 2018 Comments are off NIAC Staff
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NIAC Outraged by Supreme Court Decision Upholding Muslim Ban

FOR IMMEDIATE RELEASE
Contact: Jamal Abdi
Phone: 202-386-6408
Email: jabdi@niacouncil.org

Washington, D.C. – The National Iranian American Council (NIAC) issued the following statement following today’s Supreme Court decision upholding Presidential Proclamation 9645, commonly referred to as Muslim Ban 3.0 in the case of Hawaii v. Trump: 

“The effort to end the Muslim Ban is far from over. We will do everything in our power to organize our community and collaborate with other communities to ensure that Trump’s shameful policy is repealed by Congress.

“The promise of a United States that is inclusive, diverse, tolerant, and free has been rendered hollow for millions of Muslims, Iranian Americans, and other impacted communities as a result of this outrageous decision. Having been failed by the President, the Congress, and now the Supreme Court, it is now up to the most powerful office in our democracy – the office of citizen – to rise to the occasion and elect representatives who have the political courage to repeal this policy that has cast a shadow over our nation.

“The Supreme Court has added Trump’s Muslim Ban to the list of American moral failures that future generations will lament. This travesty of justice is a far cry from the Supreme Court that struck down segregation and bans on same sex marriage. History will view this decision along with other outrageous decisions that upheld and solidified official government-sanctioned discrimination.”

“Donald Trump stared directly into a camera and boldly proclaimed that he would have a ‘total and complete shutdown of Muslims entering the United States’. He then worked assiduously to enact that ban. Members of Congress, including Speaker of the House Paul Ryan, and the future Vice President Mike Pence condemned issued full-throated rejections of a Muslim Ban or religious test on the campaign trail. However, when Donald Trump became President, spines weakened as the Republican Congress and establishment played defense for Trump’s bigotry.

“We have been betrayed by our elected officials. Rather than intervene and uphold their oaths to protect and defend the Constitution of the United States, the Republican Congress has not held a single hearing on the Ban. Legislation to repeal and defund the Ban has been introduced and endorsed by nearly every Democrat in Congress but has been blocked by the Republican majority. The basic values and freedoms enshrined in America’s constitution have been reduced to the most vile of partisanship. Lawmakers of both parties have an obligation to protect their constituents against unconstitutional exercises of power. Instead, GOP lawmakers have run interference for the President to abuse his office and destroy our country’s bedrock values. 

“The only solution now is to elect a new Congress that will repeal Trump’s Muslim Ban and stand up to this President’s egregious abuses of power. Today’s disappointing Supreme Court decision will only deepen the convictions of Americans on the right side of history, and will only reinforce the resolve of NIAC and other grassroots civil rights organizations to continue fighting for this country’s sacred principles.”

This is not over.

 ###

April 25, 2018 Comments are off Shayan Modarres
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Supreme Court Hears Oral Argument on Muslim Ban

Today, the Supreme Court of the United States heard oral argument in the case of Trump v. Hawaii challenging the constitutionality of Presidential Proclamation 9645, otherwise known as Muslim Ban 3.0.

Americans and impacted communities have been fighting back against Donald Trump’s Muslim Ban for over a year, and today is the culmination of our collective efforts. By June of this year, we will learn whether the Supreme Court will allow a Muslim Ban to forever be enshrined into law as a shameful American moral and ethical blunder.

Lawyers on both sides argued their positions today on three key questions presented to the Court: First, whether the President’s travel ban is justiciable. In order for a case to be justiciable, there is a requirement that there be some existing controversy between the parties, that the case be neither premature or a case where the threat of injury has been removed, and that the case does not ask the court to make a determination of a political question. The Supreme Court also heard argument about whether the travel ban violates the Establishment Clause of the First Amendment to the U.S. Constitution.

The Solicitor general, Noel Francisco, arguing on behalf of the government relied heavily on the argument that there was a wide, multi-agency, international review conducted to determine which countries would be designated under the travel ban for failing to meet a baseline of information sharing, and added that the vast majority of Muslim countries were excluded from the ban. Justice Sotomayor pushed back early and asked if the government could represent that no other country that failed to meet the cooperation test was excluded from the travel restrictions. The government responded that Somalia and Iraq were excluded under the “tailored nature” of the ban, also making reference to Chad being taken off of the list of banned countries.

Justice Kagan joined in with a hypothetical of an “out-of-the-box kind of president” posed to the government: suppose a president is elected after a vehemently anti-semitic campaign where the candidate regularly disparaged Jews. The president then asked his staff to issue recommendations for security and what emerged was a travel ban on Israeli’s. The government responded that it was a tough hypothetical and he was not sure that this type of ban would survive rational basis scrutiny because of Israel being a close ally. Justice Kagan went on to say that this hypothetical, bearing a strong resemblance to President Trump, would not be about what is in the president’s heart, rather what the reasonable observer of the president’s conduct would think.

Justice Sotomayor pressed the government hard on the Kagan hypothetical questioning why the actions of the committee charged with finding a way to keep Jews out should not be subject to great suspicion and thorough review given that the committee is responsible to the president and they have been told what the outcome of their responsibility must be. Justice Sotomayor also eluded to the worldwide review report that served as the basis for the Presidential Proclamation and how it has been kept confidential and not been shared with either the litigants or the courts.

Justice Kennedy followed up on the hypothetical asking the government whether challengers, under that scenario, could bring claims under the Free Speech or Free Exercise Clauses, which the government conceded that they could.

The questioning later shifted to Trump’s campaign statements. The government asserted that the Presidential Proclamation is “very transparent” and that statements made by candidate Trump are “out of bounds” for consideration by the court. The government’s reasoning is that the taking of the oath as president marks a “fundamental transformation” from private citizen to public servant.

Justice Kennedy, widely considered a crucial swing vote, gave the government another hypothetical in which a candidate for mayor repeatedly made hateful statements, and took actions consistent with those statements once taking office. Justice Kennedy asks if those statements are irrelevant. The government again responds arguing that the actions taken by Trump are not a Muslim ban because the travel ban does not apply to the majority of the Muslim world and it was based on neutral criteria.

Justice Breyer shifted the questioning to the case-by-case waiver process and expressed skepticism that the number of individuals that have received waivers is enough to overcome the “real problem” of not having a good waiver process in place.

Neal Katyal argued next on behalf of Hawaii and began by saying that Congress has decided to reject nationality based bans before, opting to use a “carrot and stick” approach to reward countries that comply with requirements by fast-tracking entry. Katyal argued that in fact, the government has only identified a single problem, which is not individualized vetting but rather certain countries not cooperating.

Justice Alito questioned Katyal on the president’s authority under the current federal immigration law to exclude any alien or class of aliens whose presence would be deemed detrimental to the United States. Alito also asked if this Proclamation actually does anything to establish a new perpetual immigration policy for the United States. Katyal responded that this Proclamation is a perpetual, indefinite, open-ended ban with no sunset provision.

Justice Kennedy interjected saying that re-examination by the administration every 180 days in the form of a report submitted to the White House indicates a reassessment, adding “you want the President to say ‘I’m convinced in 6 months we are going to have a safe country?’” Justice Kennedy also quotes statutory language indicating he believes the president has broad latitude and authority in immigration policy.

Testing the outer limits of Katyal’s Establishment Clause theory, Justice Roberts posed another hypothetical: if the president’s advisors recommended an airstrike on Syria, would that violate the Establishment Clause because Syria is a Muslim-majority country and, therefore, anti-Muslim discrimination? Katyal pushed back arguing that this Proclamation was not introduced in the context of a pressing national security emergency like the hypothetical. In addition, Katyal stressed that the Establishment Clause is not at the heart of Hawaii’s position, but rather the flouting of Congressional authority in the context of immigration law. Arguing this point, Katyal said that if there are no limits to the president’s ability to prohibit the entry of any class of aliens, he could potentially ban software engineers from entering so as to protect the technology sector. Katyal argued that generally, the president can supplement congressional policy, but cannot completely supplant it.

Chief Justice Roberts also returned to the political rhetoric of the president from the campaign, promising a “total and complete shutdown of Muslims entering the United States.” Katyal argued that if President Trump had repudiated his campaign remarks, the Establishment Clause arguments would not exist, but the president has not repudiated; he has doubled down by complaining about his administration drafting a “watered down, politically correct version” to cure legal deficiencies, and retweeted anti-Muslim videos with captions like “Muslim migrant beats up Dutch boy on crutches!” and “Muslim Destroys a Statue of Virgin Mary!’

Justice Alito questioned how a reasonable observer could conclude that this was a Muslim Ban when only 8% of the world’s Muslims are impacted. Katyal rebuts by arguing that the point of focus should not be the 8% of the world’s Muslims, but the fact that 98% of the people affected are Muslim, or what he referred to as “religious gerrymandering.”

It becomes clear towards the end of the hearing that the Supreme Court’s decision may turn on whether it believes that the exceptions to the travel ban are substantive exceptions allowing individuals admission into the U.S., or whether they are merely “window dressing” for a broader categorical ban much different than those imposed by Presidents Carter and Reagan. Along these lines, Katyal directed the court’s attention to the case of a 10-year-old Yemeni girl with cerebral palsy who was denied medical entry into the United States. Justice Sotomayor questioned Mr. Francisco about the girl to which he responded that he was was not familiar with the case

Interestingly, the government revealed that to date, 430 exceptions (or case-by-case waivers) have been granted, though he stopped short of saying how many have been requested or rejected. Mr. Francisco also revealed that consular officers automatically check visa applications to see if they qualify for an exception/waiver. This is in direct contrast to what NIAC has heard from visa applicants who have received form letters and categorical denials of visas without being considered for waivers.

The Supreme Court will likely issue its decision by the end of June. In any event, other components of the broader Muslim Ban policy will remain no matter what the court decides. NIAC will continue to fight back against ‘extreme vetting’ and the sham waiver process in court, and on the Hill. Congress must immediately put an end to its shameful side-stepping and finally fulfill its duty to fully repeal this hateful and bigoted ban.

April 25, 2018 Comments are off NIAC Staff
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NIAC and the Coalition’s Fight Against the Muslim Ban

Today, after a more than a year of fighting back against the Muslim Ban, our community finally got our day in the highest court in the United States, which will decide whether a Muslim Ban will become the official immigration policy of our country.

As you recall, in one of President Trump’s first acts as president, he attempted his first Muslim Ban on January 27, 2017. On March 6, 2017, it was replaced with another executive order after successive losses in court. The embattled second Muslim Ban was again replaced with a third attempt, which also included an obscure and highly subjective case-by-case waiver process. The National Iranian American Council (NIAC) challenged every version of this unprecedented and unconstitutional ban in court.

But the Trump Administration did not stop there. As litigation was running its course as to the executive orders and proclamation, the Administration was busy looking for alternative means to accomplish the stated goal of a “total and complete shutdown of Muslims entering the United States.”

In May, NIAC was alarmed to learn of a new ‘extreme vetting’ policy proposal put forth by the Department of State which granted sweeping authority to consular officers to deny visas to applicants from the same Muslim-majority countries designated by the Muslim Ban. In response to this obscure and secretive new policy, NIAC sent a Freedom of Information Act (FOIA) request to the State Department requesting they produce documents related to ‘extreme vetting’ so that we could evaluate whether this administrative measure was being used as a “backdoor Muslim Ban.”

The State Department never produced the requested documents, so last week, NIAC sued.

In addition to court challenges, we made our voices heard in the halls of Congress. We told members of Congress about the stories we heard from the Iranian-American community of families being torn apart, patients not receiving life-saving medical treatment, and the world’s brightest students and researchers being stuck in a constant state of uncertainty. We told them about the drastic drop in visas issued to Muslim-majority countries by the Administration.

But more significantly, NIAC shared with Congress how the obscure case-by-case waiver process – which grants unrestricted discretion to consular officers with no set guidelines, policies, procedures or criteria on how to evaluate visa applicants – is being utilized to issue mass denials to visa applicants from Muslim-majority countries. Data produced in response to a congressional inquiry revealed that only two waivers had been issued, with this figure later being adjusted, without verifiable date, to 450 waivers.

For the past several months, NIAC has been voicing the concerns of the Iranian-American community on Capitol Hill and circulating a draft of reporting requirement legislation which we produced that, if enacted into law, would impose a requirement on the Trump Administration to lift the veil of secrecy surrounding the waiver process, extreme vetting, and the broader Muslim Ban policy and how they are all being implemented.

Irrespective of how the Supreme Court decides the Muslim Ban case later this year, Congress must step up and fulfill their duty as a co-equal branch of government and fully repeal the Muslim Ban and all of its various components.

April 23, 2018 Comments are off Shayan Modarres
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Don’t Let Muslim Travel Ban Join List of America’s Moral Failures

I could hear my heart pounding out of my chest as I stood in front of my first-grade classroom. A few weeks earlier, our teacher assigned us to bring a traditional dish from our culture to share with the class — an exercise that I now realize was meant to foster tolerance and understanding of different cultures in my predominantly white school.

“This is,” my voice trembled, “mast-o-kheyar.” It is a dish made of plain yogurt mixed with dried herbs and diced cucumber that Iranians traditionally eat as a side dish. The deafening silence was suddenly pierced with a loud shriek of “Eww! This tastes so gross!” More classmates joined in, as kids that age normally do, and eventually the entire class was rushing to the classroom sink to wash the taste out of their mouths. I could see our teacher out of the corner of my eye, laughing and smiling along with the rest of my class.

That was just one example of the many times I felt I did not belong, growing up in suburban America. These experiences were seeds planted during my childhood, and were slowly nurtured into a lifelong pursuit of equality and justice. I eventually attended Florida A&M University College of Law and served on the legal team representing Trayvon Martin’s family, doing my small part to rally in defense of black lives.

In 2014, I ran for Congress in an effort to represent all the people of Florida’s 10th Congressional District, especially those who felt left out and left behind. Back in that elementary school classroom, I would have never in a million years guessed the turns my life would take.

I am now looking forward to another major life event, one that should be joyous but is stirring those old feelings of dread and rejection. I will be getting married this September, and my aunts, uncles and cousins in Iran won’t be able to come to my wedding because President Trump has banned them.

As devastating as this is, the consequences of the ban have been far worse for others. We have left refugees stranded overseas with no place to turn. Mothers have been separated from their sick children. Grandparents are unable to meet their grandchildren. And why? Because Trump wants to keep people out because of how they choose to pray and where they come from.

The administration was forced to change the ban twice following legal pressure, and now the Supreme Court will consider the legality of the third iteration, which places restrictions on travelers from seven countries, five of them predominantly Muslim. They are Iran, Libya, Syria, Yemen, Somalia, North Korea and Venezuela. (An eighth, Chad, was recently dropped from the list.) Many of us will be watching the oral arguments in suspense, fearful that the land’s highest court will enshrine a policy that treats the families of certain Americans differently because of their national origin or religion.

The product of a diverse America is that Americans have very different life experiences and truths. But beneath the differences in skin color, nationality or religion, we all want the same thing: to feel welcome, to be treated equally, and to feel like we belong as Americans.

Celebrating our differences is what makes America great; the exploitation of our differences has always revealed the worst in humanity and led to bombs, barriers and bans.

The long list of moral failures in American history — the genocide of Native Americans, slavery and segregation, to name a few — have primarily been motivated by the exploitation of our differences. Indeed, Donald Trump won the presidency by appealing to the worst instincts of humans: to fear and view one another with suspicion; to see our fellow human beings as unequal and undeserving of dignity and respect.

We, as a country, have traveled down this road of self-destruction before and have seen the devastating consequences. True patriots stand for religious freedom for all in an inclusive, tolerant America.

I am holding out hope that I will walk down the aisle this fall and see my uncles, aunts and cousins in the crowd, wiping away their tears and holding up their phones to snap photos of my new wife and me. I still believe America is better than a Muslim ban, and maybe we will get this one right, even if it requires a favorable Supreme Court decision first.

Originally published in the Orlando Sentinel

April 13, 2018 Comments are off NIAC Staff
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NIAC Sues Trump Administration for Failing to Provide Information on Backdoor Muslim Ban

Washington, D.C. – Early this morning, the National Iranian American Council filed National Iranian American Council v. United States Department of State to compel the Trump Administration to turn over requested documents which would provide vital information about how the ‘extreme vetting’ policy is being implemented, how information is being gathered through the DS-5535 form, and the impact that this policy is having on Iranian nationals, as well as nationals from the five other designated predominantly-Muslim countries.

“NIAC fully intends on getting to the truth of how ‘extreme vetting’ is being interpreted, implemented, and enforced,” Shayan Modarres, NIAC legal counsel said. “If the records obtained confirm that the Trump administration is indeed imposing a backdoor Muslim ban through administrative measures imposing an administrative Muslim ban through ‘extreme vetting’ and DS-5535 forms, NIAC will pursue all available legal remedies to protect the Iranian-American and other impacted communities.”

Last June, NIAC sent its Freedom of Information Act (FOIA) request to the State Department seeking a variety of relevant documents which could confirm suspicions – and available data – that the Trump Administration is using ‘extreme vetting’ to deny visa requests on constitutionally impermissible grounds.

Data seems to show that President Donald Trump has found a backdoor to fulfilling his campaign promise of banning Muslims from entering the United States. Prior to unveiling Muslim Ban 3.0, President Trump tweeted in June about his desire to abandon the “watered down” revised Muslim ban and return back to the original, more discriminatory and unconstitutional, Muslim ban. Trump then noted that despite the court orders, the administration is pursuing ‘extreme vetting.’

“As the Supreme Court prepares to consider whether Trump’s Muslim ban can move forward, we also must be fighting against the backdoor ban policies like ‘extreme vetting’ and any other, discriminatory and constitutionally offensive policies,” said Modarres. “We look forward to our day in court to compel the production of these critically important documents.”

  • Read a copy of our complaint by clicking here
  • Read a copy of our FOIA request by clicking here
January 26, 2018 Comments are off NIAC
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Stories & Insight One Year into Trump’s Muslim Ban

 

FOR IMMEDIATE RELEASE
Contact: Jamal Abdi
Phone: (206) 369-2069
Email: Jamal@niacaction.org

January 27, 2018, marks the one-year anniversary of Donald Trump’s Muslim Ban that remains in place today. The Iranian-American community has been particularly impacted by this ban, with 62% of the non-immigrant visas typically issued to countries on Trump’s list going to Iranians.

The next week is an excellent opportunity to evaluate the continued impact of the ban and the prospects for overturning it when it comes before the Supreme Court this spring or at the ballot box during the Congressional mid-term elections in November. NIAC Action legal, legislative, and community experts are available for comment.

We have included key resources below including stories of those impacted by the ban, an overview of how the ban has been implemented and details on efforts to overturn the ban:

Stories from Iranian Americans on the Continued Impact of the Ban:

“My wife is finally pregnant after 8 years. My mother in law couldn’t wait to see her grandchild, but with Muslim ban 3.0, she has no chance.”

    -Mahdi
 

“I sit in my lab at university everyday, thinking why my mom and I are being punished for the crimes we’ve never committed?! In what world anyone has the right to separate a daughter from her mom for 5 years?”

    -Sara
 

“I can’t hold back my tears when I’m asked by colleagues: “what are you doing for the holidays?” I can’t travel back home because I won’t be able to come back to the U.S. due to the new travel ban. On top of that, my parents whom I have not seen for 3 years, cannot obtain a visa to come visit me. This separation is unnecessary and unfair.”

    -Maral

I lost my father, the only family I had after losing both my mother and only young brother to cancer. My father died of a broken heart, after 16 months of waiting for a visa, he had given up hope that we were ever going to be together again.

I strongly believe my rights were violated not only in the first place when my father went to the U.S. Embassy, but also over and over again during this last 16 months until he died. 

My father died from disappointment and depression. I clearly stated my situation and the hardship we went through in my letters to Congressman, the White House, the U.S. Department of State and the U.S. Embassy. I also clearly stated my frustration at the neglecting of my father’s case with them, but they did nothing to help us. I strongly believe that they are responsible for all the hardships and grief my father went through, and also his death. I strongly believe my basic right to have my father in my home was subjected to political matter, hatred and discrimination. I don’t doubt that there are many others whose hopes have been dashed by what I perceive to be an uncaring, unfeeling bureaucracy.

-Mania
 

“My 73 year old dad is suffering from heart disease, stares at my 3 year old son with a mixture of enthusiasm and sorrow. While he tries to take a look at my son through my cell phone camera, I cry deep inside and curse myself for having to leave them for hope of a better life for my kids living in freedom. My parents may live and die without having their children and grandkids around. This is the price I am paying to be in land of freedom and opportunity.”

    -Sanaz
 

“My husband is Iranian, and is now a U.S. citizen. I was born and raised in America, and I’m a current military service member. We are recently married, and we had a destination wedding in Mexico due to the Muslim Ban. We knew there was no way my husband’s entire family would get tourist visas approved to come to our wedding in America, so we decided on a wedding in Mexico. The Mexican embassy in Tehran was great to work with. They were prompt, friendly, and fair. Now that we are back home in the States, it breaks my heart that I do not know when I will see half of my family again. What if we have kids? Since we are recently married, this is something we have been talking about a lot. Do we want to bring children into the world that may never know one set of their grandparents due to our president and administration being racist? Who will help us with childcare and life in general, as many grandparents do? As an Airman, I fight for the rights of everyone in this country. The fact that our president is taking them away everyday because of his misinformed, racist agenda breaks my heart. Will I ever see my sister again? Or brother? How has Congress let him get away with this time and time again?”

– Jennifer

The Legal Implications of the Ban:

The National Iranian American Council has been involved in two lawsuits to defeat all three versions of Trump’s ban. There was little doubt then that Trump’s Order “drips with religious intolerance, animus and discrimination,” and there remains little doubt a year later:

  • While Trump’s lawyers have not yet won on the merits, the fact that the ban has been allowed to go into force means that impacted communities cannot rely on the Supreme Court alone to strike down the ban.
  • Dating back for over 40 years, no national from the targeted countries has ever killed anyone in a terrorist attack on U.S. soil;
     
  • The Department of Homeland Security’s Office of Intelligence and Analysis has confirmed that nationality is a poor predictor of terror threat;
     
  • The criteria used to justify the new proclamation were applied arbitrarily, not in an objective manner as the Trump administration has asserted;
     
  • The ban will impact more Iranians and Iranian Americans than any other group on the restricted countries list. National Iranian American Council’s analysis predicts that Muslim Ban 3.0 will disproportionately impact Iranians with 62% of those potentially impacted being Iranian nationals, according to 2016 State Department data;
     
  • Even when the Muslim ban has not been in effect, it has applied “Extreme Vetting” measures that have resulted in a dramatic decline in visa issuance to the targeted Muslim-majority countries.

 
Legislative and Political Efforts to Overturn the Ban: