The Afghan War Is Over, For many Afghans, a New Life in the U.S. is just beginning

by George Bruno


THE AFGHAN WAR IS OVER


For many Afghans, a New Life in the U.S. is just beginning

After 20 years, the intervention of four United States Presidents, 170,000 lives lost, and billions of dollars spent, the “endless war” in Afghanistan is over, followed by chaos, panic and collapse.  It all happened so suddenly.  Afghanistan is a country of 38 million people.  Its U.S. trained and equipped 350,000 nab Afghan Army (less 50,000 estimated to be on paper only) just melted away as the end approached without US and NATO support.  President Ashraf Ghani fled the country in planes reportedly filled with U.S. cash, prized personal possessions, luxury vehicles, and his entourage

The purpose of this article is to review some of the legal framework surrounding the recent withdrawal of U.S. military from Afghanistan and the entry of Afghan evacuees into the United States.

In the days following the unilateral U.S. decision to withdraw, the U.S. and NATO allies evacuated over 124,000 persons, including 6,000 U.S. citizens and legal permanent residents (aka green card holders).  It was a time constrained, pressure filled, herculean effort reminiscent of the 1950s Berlin airlift to exit Afghanistan by August 31st.  This date was the extended deadline originally agreed between President Donald Trump and the Taliban months prior to the end of his term.  In a rush to vet and provide travel documents, the emergency flights carried evacuees to military base staging areas in Doha, Qatar, 1000 miles from Kabul, and other bases throughout Europe.  The U.S. embassy in Kabul, the largest in the world with over 1,500 personnel, closed and is now operating in makeshift quarters in Qatar.

For the U.S., the war phase has has ended.   Now a new phase has begun: where and how to relocate the more than 100,000 persons airlifted out of Afghanistan, and under what authority.    By Executive Order 256, issued April 14, 2021, President Biden directed Homeland Security Secretary Alejandro Mayorkos and his Department to lead and coordinate ongoing efforts across the federal government to resettle vulnerable Afghans, including those who worked for the U.S.

A special website, https://www.dhs.gov/allieswelcome has been set up by U.S. immigration for those qualifying and wishing to escape Afghanistan

A quickly designated Unified Coordination Group now reports to Secretary Mayorkas, offering a broad range of services, from initial immigration processing, COVID-19 testing with isolation of COVID-positive individuals, to resettlement support at U.S. military bases prior to being resettled into communities.  

Close to home, the International Institute of New England, with offices in Boston, Lowell and Manchester, NH expects to relocate several hundred evacuees.  According to agency CEO and President, Jeff Thielman, because of the reduced availability of housing in N.H., relocation efforts will largely focus on Lowell, MA, where housing is more available.  N.H. will get some evacuees.

Paths for Entry to the United States

To begin their new life, there are four basic paths for legal entry to the U.S. for the evacuees:  (1) possession of a U.S. passport or green card, (2) possession of a Special Immigrant Visa, (3) being granted Afghan humanitarian parole, or(4) designation of refugee status.  All four paths have their particular elements of difficulty.

  1. S. citizens and legal permanent residents. This is the easy one.  Anyone holding a U.S. passport or valid green card may immediately enter the U.S. with no questions asked.  These could be diplomats, military, other government officials, NGO aid workers, contractors and U.S. support staff.  Welcome home. 
  1. Special Immigrant Visa (SIV) holders. The Emergency Security Supplemental Appropriations Act, as enacted on July 30, 2021, authorized 8,000 additional Special Immigrant Visas (SIVs) for Afghan applicants, for a total of 34,500 visas beginning December 19, 2014. The Department of State’s authority to issue SIVs to Afghan nationals under section 602 (b) of the Afghan Allies Protection Act of 2009, as amended, continues until all visa numbers allocated under the Act are issued.  Without question, given the sudden flood of evacuees, Congress will need to authorize additional SIVs.  H. Senator Jeanne Shaheen is an outspoken leader in this effort.

Typically, those eligible for an SIV are persons who worked alongside U.S. forces as interpreters, guides, intel support, drivers and other critical jobs.   Written recommendations by way of detailed letters and affidavits and other supporting documentation by their U.S. handlers or supervisors is crucial to obtaining one of these visas.  Their entry, and resettlement, in the U.S. is managed by the Unified Coordination Group, discussed above. 

  1. Humanitarian Parole. Not often invoked, humanitarian Parole is a quick way to facilitate entry to the U.S.  Tailor fit for emergencies, it provides temporary authorization pursuant to INA 212(d)(5) to enter the U.S.   It can be granted by the Department of Homeland Security (DHS) or the Department of Justice based on humanitarian or significant public benefit considerations.  On August 26, 2021, the U.S. Citizenship and Customs Service (USCIS), an agency within DHS published guidance at 8 CFR 212.5 for Afghan nationals seeking parole into the U.S.

Parolees are persons who may not immediately qualify for an SIV, but include U.S. media support workers, teachers, medical personnel, local suppliers to the US. and, perhaps the largest category, high profile and vulnerable women.  The latter could be teachers, nurses, media figures or village leaders.

Under a program called Operation Allies Welcome, parolees, similar to that of refugees, may apply for and receive work authorization, may attend K-12 public education, have the right to remain silent if approached by a law enforcement officer, ie ICE or police, must comply with the conditions of their parole.  While on temporary parole, a parolee may seek an adjustment of status, typically based on a qualifying family relationship, seek asylum, or apply for SIV status.

Relocation support, both for parolees and refugees, includes airport reception (Dulles International being the major initial port of entry), safe housing, food, clothing, pocket money, health services, school enrollment assistance for minors, cultural orientation, and legal assistance to access adjustment to a more permanent status.   Again, their entry, and resettlement, in the U.S. is managed by the Unified Coordination Group.  

  1. Refugee Admission. In addition to Operation Allies Welcome, the State Department is making referrals to the U.S. Refugee Admissions Program for Afghans who assisted or were associated with the United States in Afghanistan.  This would allow them to be processed for U.S. resettlement from a third country if they have already left or seek to leave Afghanistan.

A refugee is a person who has (a) fled his or her country of origin because of (b) past persecution or a fear of future persecution (c) based upon race, religion, nationality, political opinion, or membership in a particular social group, and (d) is not able to safely return to that country.   The applicant must be both outside of his/her home country and the U.S.   Alternatively, if the person is already in the U.S., he or she may apply for asylum.  The criteria for refugee/asylum status are the same, highly technical, and must meet all four prongs of the UN treaty definition and U.S. law, as described above.  The 1951 UN Convention on Refugee and its 1967 Protocol are the key legal documents that form the basis of the relative modern day universal status, adopted by the U.S. in 1954, to which149 other nations are parties.

Refugees entering the U.S.  are being broken into two categories, Priority 1 and 2, the latter being an expanded definition created especially for fleeing Afghans.   First, under the traditional definition, Afghans can be P1-eligible if the United Nations High Commission for Refugees (UNHCR), a U.S. embassy, or NGO refers an applicant to USRAP. Secondly, those who do not qualify for an SIV can become P2-elgibile if they worked for contractors (and/or the broader Mission Resolute Support), a U.S. government funded program, or a U.S. based media or NGO organization. According to the estimates, Afghans that qualify for either of these program priorities number in the tens of thousands.

A refugee does not include a person who has left his or her home only to seek a more prosperous life, also known as an economic migrant.   People fleeing civil wars and natural disasters may not be eligible for resettlement under U.S. law. However, they may fall within the protection of a program called Temporary Protective Status (TPS) and are allowed to remain in the U.S. so long as the danger persists in their home country.  The most recent TPS example would be those Haitians in the U.S. following the recent earthquake in Haiti.

Recent reports suggest that the U.S. may be willing to take 50,000 refugee this year, a sizable leap for the ceiling of 18,000 established by President Trump, but less than the 80,000 authorized under President Obama.  Meanwhile, according to an August 30, 2021 report in the NY Times, 98 countries spanning four continents, have stepped up to assist or take their share of refugees.

A Case of too Little, too Late?

Some critics say the U.S. did not have to leave Afghanistan under a cloud of panic and chaos.  Other felt that 20 years of Afghanistan occupation was not enough; they believed that the U.S. military should have stayed in place.   Others believed that more U.S. lives would be inevitably lost and more money spent that could be used to repair deteriorating U.S infrastructure.  There really was no way to exit a war going nowhere, where the mission becomes continually expansive and increasingly unclear.  Three presidents tried to leave Afghanistan but allowed themselves to be co-opted by “the generals,” skewed intelligence, domestic political calculation or perhaps sheer timidity.   President Biden completed the U.S. departure, and history will judge whether he was right or wrong.  The military and the State Department could have done a better job exiting, but under any circumstances, it was going to be messy and difficult.

Beginning in 2014, Congress authorized SIVs for Afghans subject to heightened risk and persecution who worked alongside U.S. forces.   This special relief program never lived up to its potential, and year after year the bureaucracy moved more slowly and the hoops to jump through bigger. 

Several things were happening at the State Department that contributed to this: (1) as time proceeded the department was being hollowed out.  Over the last five years, experienced diplomats were departing, many because of policy disagreements and lack of leadership support; and (2) lack of support meant that consular officers were becoming more risk averse.  None wanted to be the one who admitted the next terrorist to the US.  So, approvals stalled.

To the lasting disgrace of the U.S., in the face of ongoing threats, persecution and even death, many deserving SIV applicants found themselves waiting as long as four or more years for their visa to be approved.  As the U.S. departed Afghanistan, many SIV applications still remained on the table languishing. 

But in the arcane world of immigration, the problem is much larger. Often compared to the IRS in its complexity, the U.S. immigration system is woefully outdated and painful.  Particularly, with the passage of the penalty bound Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the security focused U.S. Patriot Act following 9/11, the proliferation of layers of decision makers in the processing of a single visa, including USCIS, State, DHS, DOL, FBI, CBP and others, has the whole system tied up in knots.  Simple procedures that used to take days, or mere weeks, now take months or years.  Consider: a year to approve a fiancé visa, six months to replace a lost green card, six months for a travel document, nine months for a work visa, 18 months to extend or change status.  Meanwhile, applicant’s lives stop and are upended while waiting to get married, obtain a driver’s license or get a job.

Congress just cannot seem to do what needs to be done.  Surely, we can do better, for Afghan immigrants and for immigration reform as a whole. 


About The Author

George Bruno is a former U.S. Ambassador, and practices global immigration law, of counsel, in Manchester. NH, with Mesa Law, LLC. He is also a principal in the consulting firm, International Resource Group, LLC, in Meredith, NH, with Attorney Robert McDaniel.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.