The Crisis in Afghanistan and Options for Immigration Relief

Demonstrators in London Rally to Call or Action on Afghanistan

The humanitarian situation in Afghanistan has raised calls from advocates and human rights organizations for immediate action to help those fleeing the country as refugees. The sudden collapse of the Afghan government and the return of the Taliban has sparked debate over what, if anything, should be done to deal with a looming humanitarian crisis. Most of the solutions being discussed in the United States are, in one way or another, related to immigration and the resettlement of vulnerable populations. 

While there is some bipartisan agreement in the United States that some policy or process should be put in place to support Afghans who cooperated with U.S. forces in the country, it remains to be seen exactly how many of these individuals will be afforded protection.

The debate over what types of lawful status should be afforded to vulnerable Afghans provides an important case study of what happens when political considerations and calculations meet an urgent humanitarian crisis and why refugee challenges are so often difficult to resolve. In this blog, we examine the various immigration options being discussed with respect to the situation in Afghanistan. 

The challenge on the ground and potential solutions 

Since the Taliban entered the capital city of Kabul on August 15, the airport has now become one of the only routes out of the country. The situation in the airport has been chaotic and disorganized, as thousands of Afghans have gone to the airport seeking a way out. The panic has led to at least seven deaths at the airport, as the crowded situation has reportedly resulted in individuals being crushed, trampled, or injured. 

Thousands of Western troops have tried to control large crowds from entering the airport. A NATO official told reporters, "The situation at Kabul airport remains extremely challenging and unpredictable."

The Biden administration has vowed to prioritize the evacuation of all American citizens from Afghanistan, with some estimates stating that tens of thousands of Americans are still hoping to be flown out. Despite this commitment, questions still remain about what relief can be provided to Afghans who are not citizens of the United States and are seeking protection from the Taliban.

This includes potentially hundreds of thousands of Afghans who have in some manner assisted the American military during the twenty years of military occupation in the country, as well as ethnic and religious minorities fearing persecution, and finally, ordinary citizens wishing to escape Taliban rule. 

Almost all of these individuals fit the classic definition of refugees, seeking to escape persecution based on a protected ground. The question now faced by the United States and much of the world is how to resettle this population in such a short period of time. 

A coalition of over 100 Muslim and immigrant rights organizations recently wrote a letter calling on President Biden to broaden visa eligibility and increase support for Afghans seeking refuge in the United States. The letter called for U.S. authorities to broaden the categories of Afghans who are eligible to apply for resettlement or special visas to the United States, as well as the use of humanitarian parole to expedite relocation. 

The letter stated: “We echo the calls of Afghan American communities and organizations that are urging President Biden to:

• broaden eligibility for Priority 1 and Priority 2 referrals to the U.S. Refugee Admissions Program;

• broaden eligibility for the Afghan Special Immigrant Visa program and increase processing capacity across all relevant agencies;

• create a special humanitarian parole program to meet the urgent needs precipitating from the current crisis, and

• increase the annual refugee allocation immediately.”

Debate Limits Action

The demands put forth by advocates have been met with opposition by some in Washington. Many Democrats, including a group of 46 Senators (43 Democrats and 3 Republicans), are calling for the administration to use a procedure known as “humanitarian parole” to get as many Afghans into the country as possible. The letter to the administration asks that human rights activists, women leaders, and other public figures be allowed to relocate to the United States quickly. 

The benefits of the humanitarian parole process include the ability to enter the United States immediately, without the need to apply for a visa or go through the typical background checks and procedures that the immigration process entails. Individuals who are paroled into the country can subsequently apply for various forms of immigration relief, including asylum.

In addition to the push for humanitarian parole, other Congressional members are calling for other forms of relief.  Rep. Pramila Jayapal, D-Wash, the leader of the House Progressive Caucus, called for an increase in specific forms of visas and temporary status for Afghans in the United States. 

"The United States must ensure refugee processing moves forward without bureaucratic delay and with special allowances recognizing the difficulty for people to leave Afghanistan," Jayapal said in a statement Tuesday. " In addition to the State Department's work to expedite Special Immigrant Visas, we must also expand these visas and grant Temporary Protected Status to Afghans residing in the United States."

In response to the calls for action, NBC News reported that the President wrote a memo granting the Secretary of State Antony Blinken an additional $500 million for "unexpected urgent refugee and migration needs of refugees, victims of conflict, and other persons at risk as a result of the situation in Afghanistan, including applicants for Special Immigrant Visas."

According to Reuters, “the Pentagon is aiming to evacuate up to 22,000 Special Immigrant Visa applicants, their families, and other at-risk people.” Other potential proposals include resettling Afghans in third countries, either permanently or to provide temporary safe haven for those fleeing persecution. 

As it stands, the United States appears to have until August 31st to evacuate up to 100,000 individuals from Afghanistan or risk a confrontation with the Taliban over extending the deadline. 

While many options are being discussed in Washington, it appears the Biden administration has been hesitant to take broad-based action on the resettlement of Afghans over fears of what “Fox News might say.”

While the administration continues to face pressure from lawmakers on potential solutions, local activists in places like the Bay Area have continued to raise their voices demanding action. Immigration attorney Spojmie Nasiri spoke to the San Francisco Chronicle during Oakland’s Lake Merritt demonstration.

“I personally have about 50 clients – including U.S. citizens, green card holders, and those with pending applications – who were tear-gassed.... Some families six days straight were waiting at the airport to get through,” she said. “Today’s the seventh day, and I finally heard they were able to get into the airport compound. I don’t know where they’re going to end up.”

Advocates Await Decision on Private ICE Facilities in California

Immigration advocates are awaiting a critical decision from the United States Court of Appeals for the Ninth Circuit (9th Circuit) regarding AB 32, a California law passed in 2019 that banned the use of private prisons and private civil detention facilities used by Immigration and Customs Enforcement (ICE). The law, the first of its kind in the nation, is being challenged by the private prison corporation, the GEO Group, Inc., and the federal government. 

In the fall of 2020, a district court in San Diego upheld AB 32, finding that California had the right to regulate the conditions of confinement for anyone detained within its borders, including those in federal immigration custody. The case was appealed to the 9th Circuit, with oral argument taking place on June 7th.

Now, advocates are anxiously awaiting a decision from the court regarding the fate of AB 32, which has broad implications for California and the nation.

Speaking to KQED, the bill’s author, Rob Bonta, now the California Attorney General, noted that the law could potentially influence other states. “This is a case with a lot of national significance,” Bonta said. “It was always the hope that others would replicate what California has done and also ban for-profit private prisons and detention centers, which are inhumane, unjust, unsafe, unfair, and which allow for literally Wall Street-owned corporations to profiteer on the backs of people.”

The bill is part of a lengthy battle between California and private prison companies who for years have played a cat-and-mouse game, with the state passing multiple bills to limit detention, while opponents claim that private prison companies have circumvented California law and exercised undue influence on local politics. 

Following the passage of AB 32, ICE and private prison companies in California signed unprecedented 15-year contracts just days before the bill was set to go into effect. The procurement of these contracts became the subject of a congressional letter probing whether the contracts were the product of collusion between the federal agency and private prison companies. 

Nearly all immigrants in detention in California are held in facilities owned and operated by three private detention companies: the GEO Group, CoreCivic, and Management & Training Corporation. If the courts uphold AB 32, these facilities may be forced to shut down, though the exact date of these closures is still at issue. 

Advocates believe that the bill could present a roadmap for other states to ban the use of private detention, a form of detention that many believe is problematic in theory and practice, driving policies of mass incarceration and harming those who are detained. More than 70% of immigrants nationwide are held in private detention facilities, and supporters of the bill believe it set off a series of copycat legislation. Washington, New Jersey, and Maryland have all passed legislation similar to AB 32. 

While AB 32 focuses on what states can do to push back on ICE detention, the Biden administration has come under fire over campaign promises to end the use of private immigration detention. Many in the immigrants’ rights community are particularly frustrated that the Biden administration’s Department of Justice chose to argue against AB 32, inheriting the case from the Trump administration and deciding to continue to oppose the law in court. 

In an interview with the LA Times, Hamid Yazdan Panah with Immigrant Defense Advocates (IDA) expressed dismay over the administration's decision to pursue the lawsuit and failure to take action against private prison companies. “The Biden administration’s callous disregard for the issue of immigration detention is embodied by their decision to side with private prison companies in the AB 32 litigation and defend profits over human lives. When confronted by activists on the issue of detention, Biden said, ‘Give me five days,’ which he later said was a joke. No one is laughing.”

IDA filed an amicus brief in the AB 32 hearing, along with Immigrant Legal Defense (ILD), the California Collaborative for Immigrant Justice (CCIJ), and the Center for Gender and Refugee Studies (CGRS). You can read the amicus brief here. 

DACA Update – Court Partially Ends DACA, Advocates Await Action

"Defend DACA March / Dream Act Now" by Rodney Dunning is licensed with CC BY-NC-ND 2.0. To view a copy of this license, visit https://creativecommons.org/licenses/by-nc-nd/2.0/

On July 16, 2021, a U.S. District Court in Texas issued a decision ruling that the Deferred Action for Childhood Arrivals (DACA) program was created unlawfully and halted any new applications under the program from being adjudicated. The ruling was made after a group of states, led by Texas, sued to end the program. The court found that DACA violated the Administrative Procedure Act (APA). The ruling is now the latest chapter in the lengthy legal saga for the DACA program and has renewed calls by advocates for Congress to act on the issue.

What you need to know

The ruling by the court is another major setback for the future of the DACA program. Here are the most important pieces of information from the ruling:

• Currently, if you have DACA, your status remains valid. Those who currently have DACA will retain their protection and work permit as long as they obtained DACA on or before July 16, 2021, including those with pending renewal requests.

• The ruling also allows for DACA renewals to continue. Those who have DACA now or had DACA in the past can still file to renew their case. Renewal applications that are pending should be processed normally.

• The ruling prevents USCIS from approving any requests for first-time DACA applicants.  All DACA initial cases will remain on hold with USCIS until further notice, regardless of whether or not the person has attended their biometrics appointment. For those who have not yet attended their biometrics appointment, USCIS has canceled all future DACA biometrics appointments for first-time DACA applicants. 

• For those who have not yet submitted their initial application for DACA, the Court's decision does continue to allow individuals to submit their DACA application for the first time, but it prohibits USCIS from making a decision on the case.

• Advance Parole will also continue for DACA recipients, according to USCIS. “All individuals whose DACA requests were granted prior to this decision will continue to have and be eligible to renew DACA and to request and receive advance parole, consistent with the court’s order. U.S. Citizenship and Immigration Services (USCIS) will provide additional specific operational guidance in the coming days.”

Following the ruling, USCIS issued the following update on its website:

“Consistent with this order, DHS will continue to accept the filing of both initial and renewal DACA requests and accompanying requests for employment authorization. However, pursuant to the July 16, 2021, order from the Southern District of Texas, DHS is prohibited from granting initial DACA requests and accompanying requests for employment authorization. Also consistent with that order, according to existing policy, DHS will continue to grant or deny renewal DACA requests.”

Advocates Call for Action

Following the ruling by the court, the Biden administration promised to appeal the decision, with Reuters news reporting, “Biden said in a statement that the Justice Department will appeal Hanen's ruling. The Democratic president also said the Department of Homeland Security, which oversees immigration issues, will soon issue a new regulation intended to strengthen DACA's legal standing.”

"Yesterday's federal court ruling is deeply disappointing," Biden said. "While the court's order does not now affect current DACA recipients, this decision nonetheless relegates hundreds of thousands of young immigrants to an uncertain future."

"But only Congress can ensure a permanent solution by granting a path to citizenship for Dreamers that will provide the certainty and stability that these young people need and deserve," added Biden.

The ruling was slammed by advocates, many of whom are tired of DACA facing years of uncertainty in the courts. The Home Is Here Coalition, which includes immigrant advocacy groups like United We Dream, released a statement calling the court's decision “cruel and malicious.” The group added, “This decision is a reminder that DACA has never been enough to protect immigrant communities who continue to be at risk of deportation.”

The ruling resulted in many activists calling on Congress to take action to resolve the question of DACA’s fate once and for all. Activists took to Twitter to demand Congress take action and pass legislation providing Dreamers a pathway to citizenship.

Unfortunately, the prospect of a Congressional solution to this issue remains daunting. While Democrats control the Senate and House by slim margins, they don’t have the 60 votes necessary to overcome a Republican filibuster and advance legislation without a prearranged deal. However, Democrats may include a pathway to citizenship for DACA recipients in a forthcoming $3.5 trillion dollar spending package that would pass the Senate by a simple majority using a process called budget reconciliation.

For now, if you or a loved one have questions about how the decision may affect your immigration status, please be sure to reach out to a qualified legal representative and have an individual assessment of your case.

Supreme Court Bars Green Cards within the U.S. for TPS Holders Who Entered Without Inspection

On June 7th, the U.S. Supreme Court issued a unanimous decision that bars immigrants with Temporary Protected Status (TPS) from obtaining a green card within the United States if their initial entry into the country was not authorized. In other words, immigrants who did not go through inspection before entering the United States are not eligible to receive a green card in the United States, even if they were granted TPS while residing in the country. 

"The question here is whether the conferral of TPS enables him to obtain LPR [Legal Permanent Residency] status despite his unlawful entry. We hold that it does not," Supreme Court Justice Elena Kagan wrote in the ruling for the case. The case, Sanchez v. Mayorkas, was brought by Jose Santos Sanchez, a Salvadoran immigrant who brought suit after being denied the ability to adjust his status to that of a lawful permanent resident. 

The ruling would not prevent individuals who entered the U.S. with a visa and overstayed from adjusting their status but would prevent those who entered without inspection at the border from being eligible for a green card within the United States. 

The case has the potential to impact tens of thousands of TPS holders, preventing them from applying for adjustment of status and obtaining a green card while they reside in the United States. According to the Congressional Research Service, an estimated 320,000 immigrants with TPS are in the United States. This includes immigrants from Burma, Haiti, El Salvador, Nepal, Honduras, Somalia, Syria, Sudan, South Sudan, Nicaragua, Yemen, and Venezuela. Immigrants from these twelve countries are currently able to apply for TPS, allowing them to reside in the United States. 

The ruling is a significant blow to immigrants who have resided in the U.S. – in many cases for decades – and are part of mixed-status families. The court's ruling, focused on the technical requirement of being “lawfully admitted” as a prerequisite to being able to adjust status, ignores humanitarian and practical considerations for individuals who cannot safely return to their homeland. 

In an interview with the Associated Press, Lisa Koop, a lawyer with the National Immigrant Justice Center, underscored the dire circumstances faced by those with TPS. “All of these families that are established in the United States and have lived in our communities for decades faced a very real threat.”

Ultimately, the ruling leaves tens of thousands with TPS in limbo, having been denied a permanent status yet unable to return to their home countries. As a result, it may be up to Congress to legislate a pathway for TPS holders to obtain permanent residency. A bill to address this issue, the American Dream and Promise Act, has been passed by the U.S. House of Representatives but faces an uncertain future in the U.S. Senate. 

Erika Andiola, the San Antonio-based non-profit Refugee and Immigrant Center for Education and Legal Services chief advocacy officer, or RAICES, called the ruling disappointing in an interview with the Texas Tribune.

“What makes the ruling even more egregious is that the vote was unanimous,” she said in a statement. “TPS holders came to the U.S. because of unsafe conditions in their native countries, and this ruling prevents them from making a true home here. We call on Congress and the Biden administration to keep their promise and create a pathway toward citizenship for all TPS holders.”

This decision may still allow TPS holders to obtain a green card by leaving the United States, in a process referred to as consular processing. However, each case must be analyzed to determine what each individual qualifies for.  In order to understand exactly what legal options you may have in this case, it is important to consult with an attorney or qualified immigration expert. 

Questions on DACA - Now that Trump is Gone, Can I Apply for Advance Parole?

As part of our common questions series, ILD will cover questions that we often encounter from community members to provide updated and accurate information. Please remember that this blog does not constitute legal advice, and if you have a specific question for you or your family, please be sure to seek a legal consultation from a qualified immigration attorney, such as ILD. 

Background: What is Advance Parole for DACA

• Advance Parole is a type of permission DACA recipients can seek in order to travel abroad and be allowed to seek to reenter the United States. Applicants who are approved receive Form I-512L and can use it to reenter the country. 

• Once they reenter, they are “paroled” into the country. It is important to note that even if you obtain and receive Advance Parole, you will still be subject to inspection by Customs and Border Protection at a point of entry or airport.

• Immigrants with various backgrounds can apply for Advance Parole, but DACA recipients have very specific requirements that they must meet in order to apply. 

Eligibility for DACA Recipients 

In order to apply for Advance Parole, DACA applicants must fill out Form I-131, Application for Travel Document, and pay the applicable fee (currently 575 dollars). However, filling out this form does not guarantee approval. United States Citizenship and Immigration Services (USCIS) must determine that your reason for travel is justified based on three general categories.

Generally, USCIS will only grant advance parole if your travel abroad will be in furtherance of:

·   humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;

·   educational purposes, such as semester-abroad programs and academic research or;

·   employment purposes such as overseas assignments, interviews, conferences or training, or meetings with clients overseas.

In order to file, applicants must provide supporting evidence that they fall into one of these categories. For example, you can include proof that you are attending a conference for employment purposes and also include a letter from your employer. Alternatively, you can provide proof of enrollment in an educational program requiring travel or submit medical documents showing that a family member is ill and you must travel for humanitarian purposes. 

Typically, applications can take about three to four months in order to be approved. If your need to travel is based on urgent circumstances, you can schedule an expedited request for approval by contacting USCIS or scheduling an infopass appointment. 

Many DACA recipients have been able to obtain advance parole and successfully travel abroad and return. In order to understand what the latest trends are in terms of approvals and application time, please contact ILD or another immigration legal services provider. 

Risks and Tips 

It is important to note that an approved Advance Parole document does not guarantee entry into the United States, instead it allows a recipient to request admission or reentry. Once you present yourself at a port of entry (for example, at the airport), you will still have to go through an inspection and admission process. 

Your Advance Parole will serve as the basis for your reentry into the United States, and assuming everything is in order, you should be allowed to return; however, it is critical to note that you are not guaranteed reentry, particularly if there is an issue that can serve as a basis for denial of entry. 

Issues related to reentry can include prior criminal convictions, deportations, or other facts in your background. That is why it is absolutely essential for you to consult with an experienced immigration attorney in order to be confident about your plan to travel abroad and return safely. 

Some important tips to keep in mind when traveling include consulting with an immigration expert before traveling and having a clear plan for your departure and return. This plan can include carefully selecting what airport you fly into, as certain ports of entry can be more or less friendly to DACA recipients with Advance Parole. You should also be prepared in case you are sent to secondary inspection by an officer (at the airport or border), and are asked specific questions about your status, reasons for travel and immigration history. Lastly, you should be sure to carry your unexpired DACA Employment Authorization Document, valid passport, and original Advance Parole document with you. 

Finally, be sure to check how COVID-19 may affect your travel plans. Travel abroad may be impacted by COVID-19 restrictions, and some countries may have specific requirements around testing and vaccination in order to be admitted. Carefully review with your attorney what, if any, information is available with respect to the country you seek to travel to. 

Advance Parole and Adjustment of Status

Advance Parole for DACA recipients is not only a path to traveling abroad, but for some, it can actually be a path to obtaining a green card or permanent residency through marriage with a U.S. citizen spouse. This is because, under current law, a person who did not enter the United States lawfully is generally not allowed to apply for a green card and adjust their status while in the United States and is forced to go abroad to complete the process. This can cause complications for those who have lived in the United States for many years without any status. 

DACA recipients who are able to travel abroad and return to the United States are deemed to have been lawfully admitted to the country and have been viewed as satisfying this requirement that many are otherwise unable to achieve. As a result, many DACA recipients who have traveled abroad have been able to return to the country and obtain their green card through their marriage with a U.S. Citizen.

It is important to note that it is unclear if this process will continue to work in the future as the policy can change for DACA recipients.  It is important to have a specific consultation in order to understand how this process might help or affect you.

You can find out more information about DACA from USCIS here.

This blog is intended for informational purposes only and should not be relied upon as legal advice. Please contact an immigration expert or non-profit, such as Immigrant Legal Defense, before making any decisions about Advance Parole for DACA.