AMY GOODMAN: I want to turn to Supreme Court Justice Neil Gorsuch questioning attorney Neal Katyal, who is representing the state of Hawaii, which sued the Trump administration over the ban. Katyal, the former acting solicitor general of the United States. This begins with Justice Gorsuch.

JUSTICE NEIL GORSUCH: I’m proceeding so far on the assumption that we can reach the merits. But the government makes the argument, for example, that aliens who are removed from this country have to bring their claims personally, and third parties can’t vindicate those rights of aliens being—who are present in this country, and asks the question why it should be that third persons should be able to assert the rights of aliens who are not present in this country. What’s the answer to that?

NEAL KATYAL: Well, several. This is not a third-party case. These are United States citizens bringing this challenge in a state of the United States.

JUSTICE NEIL GORSUCH: On behalf of aliens not present in the country.

NEAL KATYAL: Well, but they are directly—they are directly harmed themselves. Let me just give you one example. Not just the state of Hawaii, whose university is directly impacted, but let’s just take, for example, Mr. al-Omari, the 10-year-old in the PARS Equality brief, Justice Breyer, that you were referring to. This is a 10-year-old daughter in Yemen who is trying to come here because she has cerebral palsy—

JUSTICE NEIL GORSUCH: I understand that, but those arguments don’t—

AMY GOODMAN: I want to turn to the issue of that 10-year-old Yemeni girl with cerebral palsy, mentioned by Neal Katyal during the Supreme Court oral arguments. She is featured in a new Al Jazeera documentary called “Between War and the Ban: A Yemeni-American Story,” which tells the story of Yemenis trying to come to the U.S., often to reunite with family members. In this clip, her father, a U.S. citizen named Najeeb al-Omari, talks to reporter Sharif Abdel Kouddous of Fault Lines about his daughter’s deteriorating medical condition and the U.S. denial of visas for his daughter.

NAJEEB AL-OMARI: [translated] All the problems are after the war. There is no medical care. The medical system and the country have collapsed. Her condition is a consequence of the war.

SHARIF ABDEL KOUDDOUS: Najeeb’s eldest daughter, 11-year-old Shaima, was born with cerebral palsy, making it more urgent for her to get adequate medical care, something that’s become increasingly difficult in Yemen.

NAJEEB AL-OMARI: [translated] Proper medicine isn’t available. Only substitutes. But the substitutes are smuggled through the desert, and the heat ruins them.

SHARIF ABDEL KOUDDOUS: [translated] How did that affect her?

NAJEEB AL-OMARI: It really affected her. Look at her now. She wasn’t like this before.

AMY GOODMAN: Again, that clip from Al Jazeera English, Sharif Abdel Kouddous’s report. Diala Shamas, tell us about this family, this little girl that her father is saying she can’t get the medicines in Yemen. Now they’re in Djibouti. They can’t even afford to stay there. He did not think this was going to be an issue. He himself is an American citizen, and she is just deteriorating.

DIALA SHAMAS: Yeah. So, Mr. al-Omari’s case is very illustrative of—and the reason, I think, in part, why it was brought up at the Supreme Court was this is a family who, at the very least, should be given a waiver under the travel ban or the proclamation. So the waivers came as something that’s in the proclamation that allows consular officers to provide a waiver on a case-by-case basis to anybody who meets a sort of set criteria that’s set out in that proclamation.

So, you would be covered by the ban if you’re a Yemeni national; however, a consular officer may provide this discretionary waiver if they believe that it would cause undue hardship to not be allowed entry, and if it were in the best interest of the United States, and if it doesn’t present—if entry wouldn’t present a threat to national security. And then it goes on to list some examples of who may be eligible for a waiver. And young Shaima fits several of the criteria. She’s trying to rejoin her parents. She has an extreme medical condition.

AMY GOODMAN: She’s just laying there in bed, and he said she was not always like this.

DIALA SHAMAS: She deteriorated while in Djibouti. And she was denied a waiver. So, she actually has a letter denying her visa and also saying she was found ineligible for a waiver. So this is really emblematic of the sense of chaos that the administration has had from the start and from the get-go around the travel ban. So people like Mr. al-Omari are trying to navigate the system, are trying to do their best to try to petition for waivers, but look everywhere for guidance on how to do that, and aren’t able to find any.

So you would think that at least with her, and, frankly, many others—you know, she’s a very extreme case that’s illustrative of this problem, but there are so many other people that we met in Djibouti who should qualify for a waiver. And yet, what we know is that nobody has been getting them. And so they’re sitting there in Djibouti under extremely difficult conditions. Djibouti is an extremely expensive country to live in, in part because the economy is inflated due to so many foreign military bases, including the U.S. military base. And so they’re spending thousands of dollars a month, usually borrowing from relatives here in the U.S., to simply be able to sustain themselves for months and months, and, in some cases, years.

NERMEEN SHAIKH: Well, let’s go to a clip from yesterday’s oral arguments at the Supreme Court on the question of the waivers. This is Justice Stephen Breyer and Solicitor General Noel Francisco. The clip begins with Breyer.

JUSTICE STEPHEN BREYER: I looked at this order, and this has case-by-case exceptions. And then it says—you know, it says case-by-case waivers may be appropriate in individual circumstances, such as—giving some examples—the following. And then they have to be no terrorists. Well, that’s the law anyway. And they have to be in the interest of the United States, and there can’t be undue hardship, which—the only time the word “hardship” appears in the immigration law is it says “extreme hardship.” So, undue must be less than extreme. In countries of 150 million people altogether, there must be quite a few who have—do fall within that class. So—

NOEL FRANCISCO: Well, yes, Your Honor, but there’s only a small number of people that seek to come into our country.

JUSTICE STEPHEN BREYER: Well, well, that’s what I’m asking about, you see.

NOEL FRANCISCO: Yeah, yeah.

JUSTICE STEPHEN BREYER: That’s now—if you think—now, as far as we’re concerned, if they fall within that class, there’s no reason given here why they should be excluded, other than the normal processes.

NOEL FRANCISCO: Well, a couple of responses, Your Honor. First, in terms of the numbers—

JUSTICE STEPHEN BREYER: I’m not asking about the numbers.

NOEL FRANCISCO: Oh, you’re not asking. So—

JUSTICE STEPHEN BREYER: I don’t want to ask about the numbers.

NOEL FRANCISCO: So, in terms of the reason they should be excluded—

JUSTICE STEPHEN BREYER: Yeah.

NOEL FRANCISCO: One of the principal purposes of the proclamation is to exert diplomatic pressure on governments in order to get them to change and provide us with [inaudible] information.

JUSTICE STEPHEN BREYER: So you think they should be excluded.

NOEL FRANCISCO: Not if they meet the criterion or the—

JUSTICE STEPHEN BREYER: Not if they meet the criteria. OK.

NOEL FRANCISCO: For the waiver.

JUSTICE STEPHEN BREYER: OK.

NERMEEN SHAIKH: So, Lee Gelernt, that’s a discussion about the waiver program.

LEE GELERNT: Right.

NERMEEN SHAIKH: Could you explain how that’s been applied so far, and also the question of, if this ban is kept in effect, whether there’s any likelihood, depending on how the decision is written, that other countries could be added to the list?

LEE GELERNT: Right. Those are both important questions. Taking the second one, we don’t know how the opinion is going to be written, but there certainly would seem to be no reason, if they uphold the travel ban, that additional countries could not be added. So I don’t think anybody should assume that it’s just these countries or it’s going to be reduced. I mean, it’s certainly possible they’ll take countries off. They took Chad off. But they also potentially could add countries if they claim those countries now meet the criteria.

On the waiver, I think Diala put it right. There is just chaos. What came out of the argument is that there’s only been 430 waivers. There’s 150 million people covered by the ban. And if this 10-year-old little girl is not getting a waiver, then it’s hard to imagine the criteria are being applied correctly.

AMY GOODMAN: One of the things I was astounded by is Noel Francisco saying, you know, “If anyone found that they were being discriminated against, they could just appeal the decision.” Any individual.

LEE GELERNT: Right. I’m not sure how that would happen. And I think the government has not been all that transparent about the waivers, and so that’s a problem on top of all the problems created by the travel ban generally.

NERMEEN SHAIKH: Well, I want to go to another case that you’ve been working on, which is related—

LEE GELERNT: Right.

NERMEEN SHAIKH: —which has to do—earlier this week, you presented arguments in a case involving 1,400 Iraqis who are slated for deportation from the U.S.

LEE GELERNT: Right.

NERMEEN SHAIKH: Could you explain what the case is and who these Iraqis are?

LEE GELERNT: Yeah. So these Iraqis are primarily Christian or minority sect Muslims. They’ve been living in the country for decades.

AMY GOODMAN: The U.S.

LEE GELERNT: Sorry, in the United States, for decades. Some—they all have final orders of removal based—some of them, no conviction or minor convictions, but there’s a range of convictions. But they have been living here forever because Iraq would not take them back. So they’ve all settled into life here. They have raised children. They’ve raised families. And they’ve been reporting every year, and they’ve been living peacefully in the country. And every prior administration has allowed them to stay.

Well, the Trump administration now convinced Iraq to take them back. So, so be it, they’re going to send them back. We don’t think they should be sent back. But the really horrendous part is that they said, “We’re going to round them up all immediately and deport them right away,” without giving them a chance to go back to court to show that if they’re sent back to Iraq now, as Christians, as minority sect Muslims, they are in danger of being tortured or killed by ISIS or other groups.

And all we said to the federal court is, “Give them some time to show that they’re going to be tortured.” The Trump administration said, “No, we’re going to remove them in two days. So be it.” And so, a federal district court said, “Look, I’m going to slow the process down so each one of them can go in and show that they are in serious danger if they’re going to be removed.” The federal court did that, just simply slowed down the process; didn’t say anybody has the right to remain here permanently, slowed the process down.

The Trump administration decided to appeal that order to the court of appeals. So I argued that case yesterday in the 6th Circuit Court of Appeals in Cincinnati, and the government said the district court did not have authority even to slow the process down to allow these individuals to show that they’d be tortured.

Unfortunately, the Trump administration is rounding up lots of groups en masse around the country—Christian Indonesians, Cambodians, Somalis—and I think there’s going to be more—and not giving them any time to show that they’re going to be tortured or killed if sent back. These are individuals who have been living in the country for decades, and yet now they’re giving no time. And when federal judges have said, “Why do it so quickly? They’ve been here for decades, At least give them a little time,” the administration has said, “Our mission is to remove people.” And so it just looks like they’re trying to get the numbers of deportations up, regardless of the circumstances.

AMY GOODMAN: Lee, before we wrap up, can you talk about the family separation case you’ve been working on?

LEE GELERNT: Yeah, I’ve been doing this work for over 25 years. The family separation practice is as horrific as anything I’ve ever seen. They are separating asylum-seeking mothers and fathers at the border from their little children, children 18 months, 2 years, 3 years. And they don’t actually have any rationale that they can present in court. The true reason is they want to deter legitimate asylum seekers from coming to this country, and so they’re using the most draconian measure possible: taking a little kid away.

The lead plaintiff in this case is a Congolese mom and her 7-year-old daughter who made it to this country. They passed their initial asylum screening, so they’re legitimate asylum seekers. The mother, after four days, was put in another room and handcuffed, and said, “You’re going to be detained here in San Diego.” She heard her little girl, then 6, in the other room screaming, “Please don’t take me away from my mommy! Please!” The girl was taken away to Chicago. The mother wasn’t even told where the little girl was going for four days. They were separated for four months.

After the ACLU brought a lawsuit, the government said, “Well, we weren’t really sure it was the true mom.” The judge said, “Why not just give her a DNA test?” They gave her a DNA test. Of course it was the mom. And anybody could have seen, by the way she was screaming for her mother, that it was the mom. The New York Times has now just reported that there are 700 kids who have been separated from their families. We have a class action case going on, where there’s a hearing in San Diego, May 4th. We are hoping the judge will order that all these kids be reunited with their parents and the practice be stopped going forward.

NERMEEN SHAIKH: Well, Lee, what’s your sense, though? I mean, this is—as you’ve said, it’s quite a widespread practice of the Trump administration.

LEE GELERNT: Right.

NERMEEN SHAIKH: Is there any way to stop them? I mean, will the courts come forward? I mean, we just reported on the Supreme Court.

LEE GELERNT: Right.

NERMEEN SHAIKH: It seems likely that they’re going to uphold the travel ban. Is there any reason to think that these other courts will act in a way to prevent these kinds of mass deportations?

LEE GELERNT: Yeah, all I can say is we’re hopeful. And what we’ve been heartened by is that sometimes a practice is so draconian that it doesn’t just split along normal ideological lines. Even people who don’t necessarily agree with us on the macro immigration policy issues are coming forward, Republicans and Democrats, and saying, “Look, enough is enough. You cannot be separating an 18-month-old child.” We’re hoping that maybe even the administration says, “Hey, maybe we need to relook at this.”

AMY GOODMAN: Well, we want to thank you both for being with us. Of course, we’ll continue to follow this, and the ban decision will come down from the Supreme Court in June. Lee Gelernt is ACLU’s national Immigrants’ Rights Project, he’s with it. And Diala Shamas is with the Center for Constitutional Rights. Special thanks to Al Jazeera English and Sharif Abdel Kouddous for that report. This is Democracy Now! Stay with us.