Protection of Afghan asylum seekers who are not considered ‘allies’

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 that diversity, equity, and inclusion impact immigration law and policy. More information about AILA’s DEI Committee and its important work is available on the AILA website.

It would be far better if the US Citizenship and Immigration Services (USCIS) would consider all Afghan asylum seekers as “allies” and make them eligible for expedited asylum processing and supportive policies, including the right to pro bono legal counsel, regardless of whether they arrived through Operation Allies Welcome (OAW).

After the Taliban seized control of Kabul, tens of thousands of U.S. allies and threatened Afghans were evacuated from the country within two weeks in a chaotic effort that has been widely criticized. After a lengthy process at military bases in various countries, Afghans were largely able to enter the United States, some through humanitarian release and others with Special Immigrant Visas (SIVs). Through close cooperation with designated agencies specializing in immigrant resettlement, and given their diverse talents and skills and the needs of the U.S. labor market, Afghan immigrants have been resettled and employed in the United States. Policies such as humanitarian release and the Biden administration’s extension of Temporary Protected Status have given Afghan nationals more time to receive aid and apply for asylum, regardless of the one-year deadline.

Likewise, Afghans’ work permits are automatically renewed along with their legal status. Following a recent class action lawsuit, USCIS has expedited the processing of asylum applications, resulting in faster issuance of scheduled interviews for Afghans compared to asylum seekers from other countries. In addition to other benefits afforded to our Afghan allies, protecting Afghan immigrants from the risk of being undocumented or losing their legal right to work is a welcome, if limited, measure of support.

Other Afghan asylum seekers

There are other Afghans who arrived in the United States through channels other than OAW or the SIV process, and they are also reluctant to return to Afghanistan due to fear of persecution by the Taliban. Many Afghan students or scholars, on F and J visas, who arrived both before and after August 2021 are seeking 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 not eligible for even this minimum level of support simply because they did not leave Afghanistan through OAW and are considered “allies.” They are at risk of becoming undocumented or overstaying, as their nonimmigrant status is expiring soon with no opportunity for renewal. Additionally, Afghan asylum seekers on nonimmigrant visas lack access to affordable legal services. Afghans have been traumatized, struggling with depression, and suffering from anxiety due to the sudden and tragic fall of the government. Many missed the one-year deadline for applying for asylum through no fault of their own, but at the time of writing, the lack of parole makes their path much more difficult. Even if they apply for asylum based on the same fears of persecution as other groups of Afghans, they face a lengthy process of scheduling USCIS interviews.

The gap for Afghans with nonimmigrant visas is vital to consider, as the prospects for the Afghan Adjustment Act, which is awaiting Congressional approval, are uncertain and the class action for timely processing of asylum applications offers no relief to non-parole Afghans. They must undergo a lengthy process that realistically takes years. It is worth noting that the expedited process for Afghans indirectly results in thousands of applicants of other nationalities having to endure long 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 regime change, which subjected thousands of nationals to an inhumane fate because of 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 clearly distinguishes them from other asylum seekers.

The role of lawyers and law schools

Immigrant rights advocates and agencies must remain constantly aware of this gap in policy and regulation in order to provide the support needed to this group of Afghans. It is also important to note that the law allows law students to provide legal representation to Afghan asylum seekers. This form of vital legal assistance can neatly satisfy the ABA’s pro bono hour requirement for the bar exam in many jurisdictions. AILA members, on the other hand, have already established a list of attorneys who offer “low-bono” legal advice, since most Afghan asylum seekers are struggling financially—a critically important initiative that must be elevate. This approach ensures that asylum seekers can receive needed legal consultations when they cannot afford an attorney.

I believe it is important to create a level playing field for all Afghan asylum seekers, with a similar expedited application process for all Afghans in the United States, because they all face a similar risk of persecution, have a common basis for their application, and face similar circumstances.

Sanaa Talwasa
Candidate for Doctor of Laws, Class of 2024
Thomas R. Kline Faculty of Law
Drexel University