ARI SHAPIRO, HOST:
Earlier this summer, the Supreme Court upheld the Trump administration's travel ban, which means people from Libya, Iran, Somalia, Syria, Yemen, North Korea and Venezuela cannot get visas to the U.S. But there is an exception called a waiver. Kelly McEvers of the Embedded podcast is here to talk about that. Hi, Kelly.
KELLY MCEVERS, BYLINE: Hey.
SHAPIRO: Explain what a waiver is.
MCEVERS: So basically if you are from one of these banned countries and you can show to the United States that you are not a security risk and that you would face, quote, "undue hardship" if you stayed in your country, you can apply for one of these waivers. And if you get it, you can come to the U.S.
SHAPIRO: That makes it sound like this is not a total travel ban.
MCEVERS: That is what the administration says. And, by the way, it's one of the reasons that the Supreme Court upheld the ban. But advocates who work with families in these banned countries say the waivers are actually really hard to get and that when they are issued, the whole process is pretty arbitrary.
SHAPIRO: So you've got a story that shows how this waiver process works or in many cases doesn't work.
MCEVERS: Yes, yes I do. And it's the story of a man named Najeeb al-Omari. He's from Yemen. We met him recently and talked to him through an interpreter.
NAJEEB AL-OMARI: (Speaking Arabic).
DALIA HUSSEIN: First enter to the state was...
MCEVERS: And he first came to the United States in the '90s. He got a job at a gas station.
AL-OMARI: (Speaking Arabic) gas station.
MCEVERS: And like a lot of men from Yemen at the time did, he worked in the United States and spent most of the money that he made back home. He eventually got married in Yemen, had three daughters there. And by 2010...
AL-OMARI: U.S. citizen.
MCEVERS: ...He gets American citizenship. So his plan is, stay in the U.S. Keep the family in Yemen. Keep sending money to them. And maybe eventually they'll join him in the U.S.
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MCEVERS: But then of course 2011 - there are massive protests in Yemen. The president is ousted. A militant group called the Houthis takes over the capital and other parts of Yemen in 2014.
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UNIDENTIFIED REPORTER #1: Amnesty accuses all sides in Yemen's civil war of leaving a bloody trail of civilian deaths which may amount to war crimes.
MCEVERS: And that is basically the beginning of this horrific civil war that Yemen is in the middle of right now.
SHAPIRO: And if Najeeb is still in the U.S. but his family's in Yemen, what does he do?
MCEVERS: The main thing he does is worry. He worries a lot about his family, especially about his oldest daughter. Her name is Shaima, and she has severe cerebral palsy. She can't speak. She can't really move. She needs to take medicine four or five times a day to keep her muscles relaxed and to keep her from having spasms. But she's living in this war, so there's a shortage of medicine.
AL-OMARI: (Speaking Arabic).
HUSSEIN: They couldn't get her into the physical therapy. Plus the medications that she needs to take - they couldn't find it in the pharmacy.
MCEVERS: So what Najeeb does is he decides to apply for visas for his wife and daughters to come to the U.S. And then in 2016...
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MCEVERS: ...There's a bombing, and it's right near his family's house.
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AL-OMARI: (Speaking Arabic).
HUSSEIN: (Through interpreter) Very next to them - they didn't know what to do.
MCEVERS: The family's hiding in the basement. They're trying to stay away from the windows. And Najeeb's really worried about them.
HUSSEIN: So at that time after that bombing, he decided they need to be with me.
SHAPIRO: You said this is 2016 in Yemen. And of course in the U.S. in 2016, Donald Trump was running for president.
MCEVERS: Right. And he's promising...
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PRESIDENT DONALD TRUMP: A total and complete shutdown of Muslim...
MCEVERS: Of, as he says, Muslims entering the United States. He of course gets elected, and a few days after he's inaugurated, he announces the travel ban. But that very first travel ban is pretty soon put on hold, as you probably remember, by a federal court. Then the administration announces a second travel ban, and then it gets put on hold.
SHAPIRO: Now, you said Najeeb is an American citizen. So what impact does this have on him?
MCEVERS: Right, but his family of course doesn't have citizenship. So what he decides to do is to go back to Yemen to stay with them until their visa application comes through. It's very difficult for him to travel in Yemen of course, but he eventually makes it home. And the next thing that happens is he gets an email from the U.S. government.
SHAPIRO: Wow. What does it say?
MCEVERS: Well, it says the family needs to provide proof of a medical examination showing they have the proper vaccinations but that to do so, they will have to go to Djibouti.
SHAPIRO: Why would they have to go to Djibouti?
MCEVERS: It is the nearest country to Yemen that still has a U.S. embassy that's open. So he makes another really difficult trip, this time with the whole family, driving hours and hours over the mountains.
AL-OMARI: (Speaking Arabic) 15 hours.
MCEVERS: ...Through checkpoints, across frontlines. He drives really hard for Shaima, Najeeb's oldest daughter who, remember, has cerebral palsy.
AL-OMARI: (Speaking Arabic).
HUSSEIN: She was exhausted, and she was, like, crying, screaming.
MCEVERS: But they eventually make it to the airport, and they fly to Djibouti. And they get the medical exam. And then a full two years after they first applied for visas to go to the United States, they get an appointment for an interview.
SHAPIRO: And this puts us in late 2017. So remind us what's happening in the U.S. at that point with the travel ban.
MCEVERS: Right. So at this point, the third travel ban is announced, and the Supreme Court says that the travel ban can stay in effect until it hears the case that will determine whether the travel ban is permanent. And during that time, people can apply for these things that we talked about, these waivers. But the problem is no one knows exactly how these waivers work.
SHAPIRO: What do you mean? How do they apply for something if they don't know, like, how to do it?
MCEVERS: Well, there's no form. You don't go on the State Department's website and say, like, I'm applying for a waiver. Instead, if you're from a banned country and you've applied for a visa, you're just automatically considered for a waiver. So for Najeeb, his appointment comes in early 2018 at the American embassy in Djibouti. And at this point, he's still pretty confident that he's going to get the waivers or, as he calls it, an exception.
AL-OMARI: (Speaking Arabic).
HUSSEIN: And he was really optimistic because the lawyer assured for him that everything is going to be fine; don't worry; you are exception.
MCEVERS: Right.
HUSSEIN: Your case is exception.
MCEVERS: The family puts on their best clothes. They go to the embassy. Najeeb is carrying Shaima in his arms.
AL-OMARI: (Speaking Arabic).
HUSSEIN: He was in the waiting room.
MCEVERS: So Najeeb and family walk in. The consular officer says the youngest daughter who was born after Najeeb became a citizen - she's fine. She's a U.S. citizen. And he looks at the other two daughters' applications and his wife's application, and he says, the rest of you are rejected. We are under a ban, he says. And then he says it in Arabic. It's a presidential decision.
AL-OMARI: (Speaking Arabic).
HUSSEIN: (Speaking Arabic).
SHAPIRO: Why would he say that in Arabic?
MCEVERS: We actually reached out to this consular officer to ask him about that, but he didn't respond to us. But it was almost like, this isn't coming for me; this is coming from the president of the United States. And that was it. The whole thing took...
AL-OMARI: (Speaking Arabic).
HUSSEIN: Five minutes.
AL-OMARI: Five minutes.
MCEVERS: And so they leave.
HUSSEIN: When he left, he was really in a terrible situation. The kids were crying, and he was, like, really disappointed. And he didn't know what to do.
MCEVERS: But the thing about Najeeb is he doesn't wallow for too long. He's like, all right, get back to the apartment. What's next? We need a plan. And pretty soon, he does two things. First he tells his story to this group of lawyers, and they put his story into an amicus brief - that's a friend of the court brief - that they are filing in that Supreme Court case that will determine whether the travel ban stands called Trump versus the state of Hawaii. And the second thing he does is he talks to reporters.
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AL-OMARI: (Speaking Arabic).
MCEVERS: He's featured in a story on Al-Jazeera TV.
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UNIDENTIFIED REPORTER #2: Najeeb thought that given Shaima's condition and the fact that he's an American citizen, they would qualify for a waiver.
MCEVERS: And then on April 25...
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UNIDENTIFIED JUDGE: We'll hear argument today in case...
MCEVERS: ...The Supreme Court hears oral arguments in Trump vs. Hawaii.
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UNIDENTIFIED JUDGE: ...Versus Hawaii.
MCEVERS: And the lawyer for the state of Hawaii, Neal Katyal, actually talks about Shaima, Najeeb's daughter.
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NEAL KATYAL: A 10-year-old with cerebral palsy who wants to come to the United States to save her life, and she can't move or talk - the 10-year-old was denied a waiver, Justice Breyer.
MCEVERS: Then Justice Ginsburg asks the lawyer for the government about Shaima.
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NOEL FRANCISCO: ...Single case.
RUTH BADER GINSBURG: How do you deal with the example that was brought up of the child with cerebral palsy?
FRANCISCO: Your Honor, the waiver is built to address those issues. I am not familiar enough with the details of that case to tell you...
MCEVERS: And two days after this, Najeeb reads an email from the United States government.
AL-OMARI: (Speaking Arabic).
MCEVERS: The email's actually from that same consular officer who did their interview. And he writes that the waiver for Najeeb's family has actually been approved but that the family's case is still in, quote, "administrative processing."
SHAPIRO: Well, that's a coincidence of timing.
MCEVERS: Right (laughter), exactly. We reached out to the State Department to ask about this email. They said they don't comment on people's individual cases. And we should also say the email was actually dated the day before oral arguments at the Supreme Court. Najeeb just didn't read it until later. But here's the other crazy thing. Najeeb - even though he reads this email, he doesn't think he's going to get a waiver. So a whole month goes by, and then...
HUSSEIN: He received a phone call from the American embassy Djibouti - in Djibouti.
MCEVERS: They actually have a recording of this phone call.
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UNIDENTIFIED PERSON #1: (Speaking Arabic).
MCEVERS: And what they're saying is those medical records that you filed with us - they're about to expire; you need to get to the United States, which means that the family is going to get their visas, but no one's, like, saying, congratulations, you've got the visa. Najeeb eventually figures it out - what's going on. So he goes back to the embassy and goes to see this consular officer, and the consular officer just says...
AL-OMARI: (Speaking Arabic).
MCEVERS: ...Give me your passports.
HUSSEIN: They said, that's all that I need.
MCEVERS: And then a couple days later...
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MCEVERS: ...Najeeb, Asma, Shaima, Salma and Lamiya land at JFK.
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MCEVERS: And a month after that, the Supreme Court upholds the travel ban. And Shaima's case is mentioned in the dissenting opinion by Justice Breyer. He says it appears that Shaima got the waiver because of international attention to her case, so he's answering your question, Ari. And he says, you know, this gives him even more reason to believe that these waivers are not being processed in an ordinary way.
SHAPIRO: Meaning she only got the waiver because she was mentioned in front of the Supreme Court.
MCEVERS: Right, that the granting of these waivers is arbitrary. We should say also we reached out to the White House to comment on the criticism of the waiver program, but they did not respond.
SHAPIRO: So how many people are actually getting these waivers?
MCEVERS: Well, the State Department told us that as of now, more than 1,200 people have been cleared for waivers. We don't know if that means they actually have the waivers or not. That's out of at least 30,000 visa applications from banned countries.
SHAPIRO: So have you been able to figure out whether Najeeb's case went the way it did because of the international attention?
MCEVERS: Well, there's the mention by Justice Breyer in his dissent, but I actually put this question also to a former consular officer. His name's Chris Richardson.
CHRIS RICHARDSON: Oh, yeah. Everyone knows that in State, that, you know, sometimes if cases get national or international attention, things that were denials suddenly become approvals.
MCEVERS: And he says if you're one of the tens of thousands of people who have applied for a waiver, you know, it doesn't hurt to be mentioned at the Supreme Court.
RICHARDSON: We should put all 30,000 names (laughter) in an amicus brief, and maybe everyone will then get a waiver (laughter).
MCEVERS: Like, Najeeb's case is the exception. It's not the rule.
SHAPIRO: Well, how are Najeeb and his family doing now?
MCEVERS: They're living in California. When we were there, the two younger daughters were running around.
AL-OMARI: Hello. What's your name?
LAMIYA AL-OMARI: Lamiya.
AL-OMARI: Lamiya (speaking Arabic).
LAMIYA: Lamiya al-Omari.
UNIDENTIFIED PERSON #2: (Laughter) The full name.
MCEVERS: Shaima was in the other room, resting She's stable now. And Najeeb's wife recently got her green card.
SHAPIRO: That's Kelly McEvers of NPR's Embedded podcast. Thanks, Kelly.
MCEVERS: You're welcome. Transcript provided by NPR, Copyright NPR.
