Rachel Brown and Georgia Travers are students at Yale Law School and co-authors of the report “Window Dressing the Muslim Ban: Reports of Waivers and Mass Denials From Yemeni-American Families Stuck in Limbo.”
Amid the national outcry over the family-separation crisis at the border, the Supreme Court last week ruled to uphold President Trump’s Muslim ban. This decision will increase the number of families torn apart by the Trump administration. We recently traveled to Djibouti to interview dozens of Yemenis who had hoped to travel to the United States, but are now stranded in the east African nation because of the ban. A report documenting our findings was just released by the Yale Law School Rule of Law Clinic and the Center for Constitutional Rights. The harrowing stories parents told — including one of a breastfeeding mother denied a visa to move to the United States with her son — echo those emanating from the U.S.-Mexico border.
More than a year after the Muslim ban’s introduction, thousands of children, parents and spouses remain separated as a result of visa denials. Last week’s ruling may make many of those separations permanent. Under the ban, individuals from five Muslim-majority countries — Iran, Libya, Somalia, Syria and Yemen — can no longer receive visas to join their families who are citizens or lawful permanent residents in the United States.
Sharifa Geilan is one of the many parents separated from her children by the ban. Though her husband and four children are all U.S. citizens, she was denied a visa to settle with them in the United States. Geilan, who is seven months pregnant, explained that each phone call with her children ends in tears. “They can’t live far away from their mom, but I can’t do anything. I tell my children that this isn’t in my hands — that this is the decision from the ban.”
The ban has hit Yemeni-American families such as Geilan’s particularly hard. In hundreds of Yemeni families, some but not all of the parents and children are U.S. citizens. Before the ban, Geilan would almost surely have received a visa as the wife and mother of U.S. citizens. Now, however, for Geilan’s family to reunite, they have little choice but to return to war-ravaged Yemen. If not, they must take the unfathomable step of permanently separating from Geilan.
In theory, the ban offers these families one outlet for relief. Consular officers may grant waivers to otherwise barred applicants who pose no security threat and whose entry is in the national interest if those applicants can demonstrate that they would otherwise face “undue hardship.” Moreover, the Supreme Court’s opinion even states that it might be appropriate to grant waivers to those who “seek to reside with a close family member.”
However, the stories of individuals summarily denied waivers despite satisfying all these criteria only confirm Justice Stephen G. Breyer’s suspicion that “the Government is not applying the Proclamation as written.” Rather than being denied at the border, families are being torn apart at U.S embassies scattered around the world — and out of sight of most Americans.
One 16-year-old Yemeni boy we interviewed is stranded in Djibouti without any family. He dreams of studying to become an orthopedic surgeon, and desperately wants to join his father, a U.S. citizen, in North Carolina. Yet the U.S. Embassy denied him a waiver the same day he interviewed. In another case, the wife of a man who has been a U.S. citizen for 39 years suffers from a spinal condition and underwent multiple surgeries in Yemen. She prays to finally rejoin her family in New York and receive medical care. She too was denied a waiver.
These two cases are the natural consequences of an opaque and arbitrary process, and are far from unique. From the ban’s introduction through March, almost every application from a Yemeni in Djibouti was denied. During oral arguments in April, the Supreme Court questioned the effectiveness of the waiver process and brought up the case of a severely handicapped Yemeni girl denied a waiver to join her father who lives as a U.S. citizen in New York. Immediately thereafter, a number of Yemenis abruptly received letters of waiver reconsideration without any explanation for the change. In this age of discretionary enforcement based on political headwinds, how can we be sure this sudden change will not just as quickly be reversed?
By taking the Trump administration’s dubious account of the waiver process at face value and ignoring the evidence on its implementation, the Supreme Court failed to recognize that the current waiver process does not — and cannot — legitimate a discriminatory policy. As a result, the parents we met in Djibouti will continue to face a choice: remain separated from their own children, or move family members who are living legally and securely in the United States back to the throes of the civil war in Yemen.