Even before the Taliban took control of Afghanistan, that country was suffering a humanitarian disaster. In 2020, about 2.5 million Afghans were living outside their country as refugees; another 3.5 million were displaced within Afghanistan. In August 2021, the Taliban occupied Kabul, which triggered one of the largest air evacuations in history--over 124,000 people were flown out of Hamid Karzai International Airport.

Where all these people will go remains an open questions. As usual, Afghanistan's neighbors are hosting the large majority of refugees, with more than 1.4 million in Pakistan and about 780,000 in Iran. Significant numbers of people are also in Europe and Turkey.

The United States is also accepting Afghans, and we are currently in the process of receiving about 50,000 people for permanent resettlement. Given our long involvement in Afghanistan, and that many Afghans relied on us and assisted our efforts, it seems only right that we protect those in need. The problem (or, more accurately, one problem) is that for most Afghan evacuees, there is no legal mechanism for them to remain permanently in the U.S., and so their legal status in our country is uncertain.

Some of the evacuees may already have status in the United States--based on family immigration petitions or Special Immigrant Visas (available to certain Afghan nationals who worked with U.S. forces). However, the majority of arrivals are entering the country with a two-year temporary status based on humanitarian parole.

The good news about humanitarian parole is that it is a flexible tool that the Executive Branch can use to bring foreign nationals to the United States. Among other requirements, the person must be "coming to the United States for protection from targeted or individualized harm." That clearly covers the evacuees from Afghanistan. Over the years, other populations have benefited from humanitarian parole as well--certain Indochinese refugees, Cubans, and Central American minors, for example.

Humanitarian parole has a few downsides, however. One is that parolees need a financial sponsor in the U.S. in order to come here. The bigger downside--and one that potentially affects all affirmative asylum seekers--is that humanitarian parole does not provide a permanent status for parolees. Instead, humanitarian parole provides only a temporary status, which can be renewed (or not) by the U.S. government.

The issue, of course, is that most Afghans coming to the U.S. on humanitarian parole do not need temporary protection--they need permanent protection. So how can such people obtain permanent status in the United States?

Some may be eligible for status based on family petitions. Others might qualify for Special Immigrant Visas. Still others may be eligible for Special Immigrant Juvenile Visas (for unaccompanied minors). A few might be eligible for a Green Card based on employee sponsors or the Diversity Visa Lottery. However, my guess is that the large majority of Afghan parolees will qualify for none of these. Instead, the only option available to them will be asylum.

First, let me say that this is ridiculous. If the U.S. government is making an effort to bring Afghans to America, the U.S. government should provide them a permanent status here. The evacuees should not have to go through the uncertain and potentially lengthy asylum process in order to remain in the country. Unfortunately, absent some type of creative solution (which may or may not be legally possible), to provide permanent status to the new arrivals, Congress needs to pass a new law. But given how disfunctional Congress is, a new law for Afghan parolees seems unlikely. Thus, we are probably stuck with the system we have.

As a result, we can expect thousands of new asylum seekers to start entering into the already-overcrowded system. Currently, there are more than 400,000 pending asylum cases, and some applicants have been waiting 6+ years. If we add another 30,000, 40,000 or 50,000 cases to the mix, we can expect even more of a mess.

Also, since August 2021, the Asylum Offices have been prioritizing Afghan cases. This means that non-Afghan cases are being set aside in favor of interviewing Afghans. It is understandable that the Asylum Offices have taken this course, given the dire situation in Afghanistan, but the result is even more delay--and less hope--for other, long suffering applicants. These asylum seekers have already been pushed aside by LIFO (last-in, first-out - where new cases receive priority over old cases) and pandemic delays. Now asylum seekers will suffer yet another set back, as Asylum Office priorities shift once again.

In the absence of Congressional action, one possible solution to this problem would be for the Asylum Offices to create a separate track for Afghan asylum applicants. Under the law, all applicants must receive an interview, but there is no requirement that these interviews take many hours (as such interviews often do). Instead, Afghans could receive a very truncated interview, so the Asylum Office can confirm their identity, ensure that no bars to asylum apply, and gather the information needed for a security background check. Given that we have evacuated these applicants with the intention of allowing them to stay here, it makes no sense to devote precious Asylum Office time to determining eligibility--any Afghan who is currently in the U.S. should be eligible for asylum, since the current government of Afghanistan (the Taliban) is a terrorist regime that has harmed and killed thousands of people affiliated with the United States. Since basic eligibility for protection is not an issue, we should be able to get through Afghan interviews very quickly.

Sadly, as of this writing, the Asylum Offices are still requiring full interviews for Afghan asylum seekers. This means that Afghan applicants need to carefully prepare their cases, gather evidence, and (ideally) consult with a lawyer about any issues that might block them from asylum (for example, if you gave money or any material support to the Taliban, even a very small amount, you could be blocked from asylum; also, anyone seeking asylum in the U.S. must file within one year of arrival, otherwise, you can be denied for filing too late).

Hopefully, we will see changes to the process soon. In the best case, Congress will pass a new law to regularize Afghan evacuees. If not, the Asylum Office should create a more efficient system with shortened interviews. This would better fulfill our nation's commitment to our Afghan allies and to all those other asylum seekers who have come here seeking protection.

Originally posted on the Asylumist: www.Asylumist.com