Think Immigration: Protecting Afghan Asylum Seekers Who are Not Considered “Allies”

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AILA welcomes this blog post from Diversity, Equity, and Inclusion (DEI) Committee Law Student Scholarship recipient Sanaa Talwasa, part of a series intended to highlight the important ways in which diversity, equity, and inclusion inform immigration law and policy. More information about AILA’s DEI Committee and its important work is available on AILA’s website.

It would be far better if U.S. Citizenship and Immigration Services (USCIS) were to regard all Afghan asylum applicants as "allies" and consider them eligible for an expedited asylum application process and supportive policies, including the right to pro bono legal counsel, irrespective of their arrival through Operation Allies Welcome (OAW).

After the Taliban gained control of Kabul, tens of thousands of U.S. allies and at-risk Afghans were evacuated from the country within two weeks through a chaotic effort that faced considerable criticism. After a lengthy procedure at military bases in several countries, Afghans were mostly able to enter the United States, some through humanitarian parole and others with Special Immigrant Visas (SIV). Through close coordination with designated agencies specializing in immigrant resettlement and given their diverse array of talents and abilities and U.S. labor market needs, Afghan immigrants have been resettled and employed across the United States. Through policies like humanitarian parole and Temporary Protected Status extended by the Biden Administration, Afghan nationals have had more time to access assistance and apply for asylum, regardless of the one-year deadline.

Similarly, employment authorization for Afghans automatically renews along with their legal status. After a recent class action lawsuit, USCIS expedited the processing of asylum applications, leading to faster issuance of scheduled interviews for Afghans compared to asylum seekers from other countries. In addition to other advantages offered to our Afghan allies, providing protection for Afghan immigrants against the risk of being undocumented or losing their legal right to work is a welcome, albeit limited, level of support.

Other Afghan Asylum Seekers

There are other Afghans who arrived in the United States through a different channel than OAW or the SIV procedure, and they are also reluctant to return to Afghanistan due to fears of persecution by the Taliban. Many Afghan students or scholars, holding F and J visas, who arrived both prior to and following August 2021, are pursuing asylum. Unfortunately, they often fall outside the “allies” designation and thus do not have access to the expedited processing and resettlement assistance described above.

Afghans who did not enter as SIVs or through OAW are ineligible for even this minimum level of support solely because they were not airlifted out of Afghanistan through OAW and accounted for as “allies.” They face the risk of becoming undocumented or overstaying, as their non-immigrant status is soon to end with no opportunity to extend. Also, Afghan asylum seekers with non-immigrant visas lack access to affordable legal services. Afghans were traumatized, struggled with depression, and suffered from anxiety due to the sudden and tragic collapse of the government. Many have missed the one-year deadline for seeking asylum through no fault of their own, yet, as of this writing, the lack of parole status makes their road much harder. Even if they apply for asylum based on the same persecution fears as other groups of Afghans, they face a lengthy process for scheduling USCIS interviews.

It is vital to consider the gap for Afghans with nonimmigrant visas because the prospects for the Afghan Adjustment Act, awaiting passage by Congress, are uncertain and the class action for timely processing of asylum applications does not provide relief for non-parolee Afghans. They must undergo a lengthy process that, realistically speaking, takes years. It's worth mentioning that the expedited procedure for Afghans indirectly results in thousands of applicants from other nationalities enduring lengthy waits due to the well-known backlogs in the immigration system. The expedited process was created to address the concerns of a specific subset of the displaced Afghan population affected by the regime change, which subjected thousands of nationals to an inhumane fate due to their alignment with U.S. policies—a similar risk for many of the same nationality. This unique circumstance is shared by all Afghan refugees and distinctly sets them apart from other asylum applicants.

The Role of Advocates and Law Schools

Immigrants’ rights advocates and agencies need to be continually mindful of this gap in the policies and regulations in order to render needed support for this group of Afghans. Also, it is important to note that the law authorizes law school students to provide legal assistance to Afghan asylum seekers. This form of critical legal aid can neatly fulfill the ABA's pro bono hours requirement for the Bar Exam in many jurisdictions. AILA members, on the other hand, have already compiled a list of advocates offering "low-bono" legal advice, as most Afghan asylum seekers face financial difficulties—a critically important initiative that needs to be elevated. This approach ensures that asylum seekers can receive needed legal consultations when they cannot afford an attorney.

I believe it is important to consider leveling the playing field for all Afghan asylum seekers with a similar expedited application procedure for all Afghans in the United States, as they all face a similar level of risk of persecution, share a common basis for their application, and experience similar conditions.

Sanaa Talwasa
Juris Doctor Candidate, Class of 2024
Thomas R. Kline School of Law
Drexel University