Tuesday, October 19, 2021

Remove the Bureaucratic Red Tape for Afghan Nationals

Guest blogger: Justin Colón, law student, University of San Francisco

The US response has been lackluster, with much of the discussion focused on the Special Immigrant Visa (SIV) program. The SIV program was created in 2009 as part of legislation that was intended to support Afghan allies. Along with the SIV program, the P-2 program (a special priority designation under the US Refugee Admissions Program) are the two primary legal paths for Afghan nationals hoping to immigrate to the US. Like many of the legal pathways to immigration, the task of applying and qualifying for the programs are daunting in themselves. A lot can be said about how the United States ended and exited its 20+ year war in Afghanistan. In the immediate aftermath, the Taliban began targeting groups who offered aid or worked with the U.S. during that 20-year war. Among those groups were those who had offered aid to the U.S. military or U.S.-funded organizations. These groups face particular hardship as their lives are continuously threatened by the fear that the Taliban will kill them.

First there are the requirements. To be eligible for an Afghan special immigrant visa, an applicant must show: (1) they were employed for at least one year by the US government (either as an interpreter, or performing other activities for US military personnel); (2) a letter of recommendation from a senior supervisor; and (3) a constant and ongoing threat as a consequence of such employment. There is a mountain of paperwork that goes into each step of the process, which is a lot to ask from individuals facing imminent and constant persecution. There isn’t currently any allowance made for Afghans who are in real and imminent danger to expeditated the process. Those ineligible for an SIV (such as Afghan nationals who did not work with non-military US government funded programs, or who did not meet the “time in service” SIV requirement), the P-2 program provides a pathway to immigration albeit with similar daunting requirements. For the rest of the Afghan nationals facing danger, humanitarian parole might be the only other pathway to safety in the US. Further, as with many visa programs there are only a certain amount allotted each fiscal year (8000 in the case of Afghan SIVs), an amount that is far outnumbered by the number of potential applicants.

The first step in the lengthy process requires that the applicant go to a U.S. Embassy for an interview. This has proven problematic because the U.S. Embassy shut down due to the abrupt exit of U.S. forces. Individuals not lucky enough to have obtained interviews in Afghanistan must now reach a U.S. embassy in another country. However, in order to do so they need to bring with them legal documents allowing them to leave Afghanistan. As one State Department official told NPR “For many it’s a Catch-22: You can’t get approved until you get out of Afghanistan and you can’t get out of Afghanistan until you have paperwork showing you’ve been approved.”

 The president and the executive branch have the authority to relocate individuals on an emergency basis. The Indochina Migration and Refugee Assistance Act, passed in 1975, has been used by the president to authorize programs to evacuate refugees such as Iraqi Kurds and Kosovans. These programs allowed the president to create an expedited asylum process in which the refugees were housed and fed awaiting for approval. Additionally, the Executive branch can expand existing humanitarian parole programs or create a parole program that doesn’t force the thousands of Afghans waiting either for an SIV/P-2 visa, or who are in the process of the rigorous initial review, while they are in immediate danger of their lives. An expansion or new parole program would also capture the many who would not otherwise be eligible under existing visa programs.

The U.S. has a moral obligation to ensure the safety of Afghan nationals fleeing persecution. There are several legal avenues, many of which get around the bureaucratic red tape of official visa programs, that the Biden Administration can exercise to fulfill that obligation.

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https://lawprofessors.typepad.com/immigration/2021/10/remove-the-bureaucratic-red-tape-for-afghan-nationals.html

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