Trump Travel Ban Suit Brought by Visa Applicants to Move Ahead

Visa applicants alleging they were unlawfully denied entry to the US under former President Donald Trump’s travel ban can sue federal officials as a class, a judge ruled, the latest development in a long-running lawsuit over the contentious former policy.

The lead plaintiffs have argued since 2018 that Department of Homeland Security officials and other federal agency workers improperly implemented Trump’s restrictions on travel and immigration by ignoring a provision meant to grant waivers to some applicants. The group argues the denial of waivers caused them or their family members dislocation.

The US District Court for the Northern District of California certified as a class a group of people from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen, who were refused visas pursuant to the Trump proclamation. The class consists of people who didn’t obtain a waiver, haven’t subsequently obtained a visa, and haven’t reapplied for a visa since the proclamation was revoked early in the Biden administration.

“The lack of a properly-administered waiver process is the common course of conduct that caused plaintiffs’ injuries, and the legal grounds for challenging that conduct are the same across the entire proposed class,” said Judge James Donato in a Tuesday order granting class certification.

Donato previously granted summary judgment to the lead plaintiffs on their Administrative Procedure Act claims, saying they had demonstrated that the government’s handling of the waiver program was arbitrary and capricious. He had ordered the parties to settle on a remedy.

The government had told the court it would provide “meaningful relief” to approximately 41,000 visa applicants who were denied a waiver under the travel ban, Donato said in his order Tuesday. The government had earlier proposed it would “notify these 41,000+ individuals directly” and and “advise them that if they wish to reapply for a non-immigrant visa, they may do so without paying a second fee,” according to minutes from a 2023 hearing.

“This all went up in smoke,” however, when government lawyers later said they didn’t agree to specific relief, Donato said.

“Needless to say, this is an egregious record of poor performance by the government,” he said.

The judge rejected the government’s argument that certifying the class would improperly involve the court in the government’s visa decision-making.

“Plaintiffs are not asking for, and the Court will not order, any specific outcomes for any particular visa applications,” he said. “The government’s arguments along the lines that ‘allowing this Court to tamper with individual consular decisions would violate the doctrine of consular nonreviewability’ have zero application and are way out of line.”

He ordered the parties to meet and confer on a proposed remedy.

Trump’s travel ban was upheld by the U.S. Supreme Court in its 2018 ruling in Trump v. Hawaii with the justices splitting 5-4 along ideological lines.

Muslim Advocates and others represent the proposed class.

The case is Emami v. Mayorkas, N.D. Cal., 3:18-cv-01587, 3/26/24.