Afghans who helped us deserve better immigration treatment

As the Afghan government and military fell to the Taliban after U.S. troops were withdrawn from Afghanistan, the U.S. hastily evacuated American citizens and 76,000 Afghans who had helped the U.S. in its 20-year war against the Taliban.

It is a year later now, and most of the Afghan evacuees still have temporary immigration status, which means that they may be subject to removal when their status expires. This isn’t right. We should be taking better care of them.  

It is more than just an obligation to people who put themselves in peril to help the United States. 

According to Margaret D. Stock, a retired military officer, “Correcting for this inaction is a matter of national security — in future conflicts, why would anyone risk their lives by serving alongside our soldiers or providing critical translation services if the U.S. can’t keep our promises to them when we depart?” 

It wouldn’t be taking this long to meet the needs of the Afghans if our immigration system weren’t overwhelmed to the point of being dysfunctional.

Parole

The evacuees who did not have entry documents had to request humanitarian parole, which permits undocumented migrants to be admitted to the United States temporarily for urgent humanitarian or significant public benefit reasons. 

Approximately 70,192 of them were paroled into the United States between July 30, 2021, and Nov. 15, 2021.   

Permanent status

Congress has enacted a series of legislative provisions which enable certain Afghan nationals to become lawful permanent residents (LPRs) on the basis of a Special Immigrant Visa (SIV).

Section 1059 of the National Defense Authorization Act for fiscal 2006, authorizes giving SIVs to Afghans who worked with the U.S. Armed Forces or under Chief of Mission (COM) authority as a translator or an interpreter for at least a year. 

To be eligible for this special immigrant classification, the principal applicant must obtain a favorable written recommendation from the COM or a general or flag officer in the relevant Armed Forces unit.

Afghans who were employed by or on behalf of the U.S. government or the International security Assistance Force in Afghanistan may be eligible for SIV status under section 602(b) of the Afghan Allies Protection Act of 2009.

Roadblock

As of July 18, 2022, there were 74,274 principal applicants in the SIV pipeline. This number does not include spouses and children. And the applications have to be processed by USCIS, which is experiencing a backlog crisis. 

The 2022 Annual Report to Congress from the Citizenship and Immigration Services Ombudsman observes that USCIS frequently has had to deal with large backlogs, but they have never been as severe as the one the agency currently faces.

USCIS has a backlog of around 5.3 million immigration benefit applications, with an additional 8.3 million pending requests that are not in the backlog yet because they aren’t ready yet for adjudication. This means that USCIS has 13.6 million benefit requests to process — in addition to the new applications it is receiving.

The evacuees could apply for asylum while they are waiting for their SIV applications to be processed, but their asylum applications also would have to be adjudicated by USCIS. And USCIS is not keeping up with these cases either. It has an asylum backlog of more than 430,000 pending cases.

Concerns that need to be addressed

Prior to being admitted to the United States, the Afghans were put through a multi-layered screening and vetting process that includes biometric and biographic identifiers, which is conducted by intelligence, law enforcement, and counterterrorism agencies.

The value of this process depends on whether the agencies have previously encountered the Afghans being screened. Without such prior contact, searching agency records will not produce any information about the evacuees.

Better security screening methods are badly needed.

Apparently, this time, however, adverse information was found.    

The Department of Defense (DOD) assisted in screening the Afghan evacuees while they were at staging locations outside of the United States, and a Pentagon whistleblower reportedly claims that 324 of the Afghans were on DOD’s watchlist of suspected and known terrorists.

He also reportedly claims that the White House and DOD officials directed agency personnel to cut corners and not conduct full fingerprint tests. 

Afghan Adjustment Act

On Aug. 7, 2022, Sen. Amy Klobuchar (D-Minn.) introduced the bicameral Afghan Adjustment Act, S.4787, which she says would allow Afghans with temporary immigration status to apply for LPR status after undergoing additional vetting.

It has to pass first, which seems extremely unlikely to me.

The Afghan Adjustment Act would establish a streamlined adjustment process to make it easier for eligible Afghan nationals who supported the United States mission in Afghanistan to become LPRs.

This would require processing the Afghans applications ahead of the applications of people who have been waiting a very long time for their own immigration benefit applications to be processed.

The bill would make LPR status available to previously omitted groups and their family members, including members of the Afghanistan National Army Special Operations Command, the Afghan Air Force, the Special Mission Wing of Afghanistan, and the Female Tactical Teams of Afghanistan.

This could greatly increase the size of this legalization program.

The bill also would require DHS to establish screening requirements that are equivalent to those used in the United States Refugee Admissions Program (USRAP), including an interview. USRAP screening includes biometric and biographic checks at multiple stages throughout the process.

Unfortunately, refugee screening also depends on whether the agencies involved have information on the migrant being screened.

The elephant in the room

The needs of the evacuees are important, and I am confident they will be taken care of eventually. Their plight highlights a much bigger problem that is largely being ignored.

USCIS isn’t the only agency facing a backlog crisis. As of the end of July, the immigration court had a backlog of more than 1.8 million cases, with an average wait time for a hearing before an immigration judge of 818 days.

How much worse do things have to get before the administration and congress realize how serious this situation is?

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://www.blogger.com/blog/posts/2306123393080132994